TMI Blog2013 (4) TMI 586X X X X Extracts X X X X X X X X Extracts X X X X ..... wn test to find out as to whether a particular transaction is supply of goods or of work contract & held that the assessee therein divided the execution of the contract into two parts namely work to be initially done in accordance with the specifications laid down by the assessee and "the supply of lift by the assessee". The "work part" in the contract was assigned to the customer and the supply part was assigned to the assessee. Here, the "work part" as well as "supply part" were assigned to the petitioner. It is not necessary to dwell upon the issue any further as it may prejudice the case of either party. Suffice it to say that there is material before the respondents to form a belief that the turnover of the petitioner has escaped the assessment. The assessing authority while framing the assessment order has overlooked the judgment of the Apex Court on the issue given in the case of M/s. Hindustan Shipyard Limited Vs. State of Andhra Pradesh [2000 (7) TMI 864 - SUPREME COURT OF INDIA] and the principle laid down therein has been reiterated in M/s. Kone Elevator (India) Ltd. (supra). Thus it is a case of escaped assessment. In view of the different provisions provided u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pending. During pendency of the appeal, the Assessing Officer initiated proceedings for reassessment under Section 21 (2) of the Act and forwarded the papers for sanction of the reassessment proceedings. On which the Additional Commissioner, Grade-I, Trade Tax (respondent-2) issued a notice dated 04.08.2005 to the petitioner calling his explanation/reply. The petitioner submitted his reply to the aforesaid notice on 07.09.2005, however, respondent-2 by order dated 27.09.2005 granted sanction for reassessment. In pursuance of the order dated 27.09.2005, the Assessing Officer issued notice dated 08.12.2005 for reassessment for Assessment Year 2001-02. The petitioner has challenged the reassessment proceedings on the ground that all the necessary facts had been disclosed by the petitioner and considered by the Assessing Officer, in the assessment order in which he had found that the business of the petitioner was of works contract and as such he had not levied trade tax on the price of the materials used by the petitioner in execution of the work contract, according to the provisions of Section 3-F of the Act; reassessment proceedings is nothing but the change of the opinion of the A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or deferred payment or for commission, remuneration or other valuable consideration and includes-- (i)-(iv) * * * (v) every person who acts within the State as an agent of a dealer residing outside the State, and buys, sells, supplies or distributes goods in the State or acts on behalf of such dealer as-- (A) a mercantile agent as defined in the Sale of Goods Act, 1930; or (B) an agent for handling of goods or documents of title relating to goods; or (C) an agent for the collection or the payment of the sale price of goods or as a guarantor for such collection or such payment; (vi) a firm or a company or other body corporate, the principal office or headquarters whereof is outside the State having a branch or office in the State, in respect of purchases or sales, supplies or distribution of goods through such branch or office; (vii) * * * (viii) every person who carries on business of transfer of the right to use any goods for any purpose (whether or not for a specified period) for cash, deferred payment or other valuable consideration: Provided....* * * (d) ''goods' means every kind or class of movable property and includes all materials, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... purchases or both, as the case may be, which shall be determined in such manner as may be prescribed. 3-F. Tax on the right to use any goods or goods involved in the execution of works contract.--(1) Notwithstanding anything contained in Section 3-A or Section 3-AAA or Section 3-D but subject to the provisions of Sections 14 and 15 of the Central Sales Tax Act, 1956, every dealer shall, for each assessment year, pay a tax on the net turnover of-- (a) transfer of the right to use any goods for any purpose (whether or not for a specified period) for cash, deferred payment or other valuable consideration; or (b) transfer of property in goods (whether as goods or in some other form) involved in the execution of a works contract, at such rate not exceeding twenty per cent as the State Government may, by notification, declare and different rates may be declared for different goods or different classes of dealers. (2) For the purposes of determining the net turnover referred to in sub-section (1), the following amounts shall be deducted from the total amount received or receivable by a dealer in respect of a-- (a) transfer referred to in clause (a) of sub-section (1) w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... [(1) If the Assessing Authority has reason to believe that the whole or any part of the turnover of a dealer, from any assessment year or part thereof, had escaped assessment to tax or has been under-assessed to tax at a rate lower than that at which it is assessable under this Act, or any deductions or exemptions has been wrongly allowed in respect thereof, the Assessing Authority may, after issuing notice to the dealer and making such inquiry as it may consider necessary assess or re-assess the dealer to tax according to law] : Provided that the tax shall be discharged at the rate at which it would have been charged had the turnover not escaped assessment, or ful assessment, as the case may be. Explanation [I] - Nothing in this sub-section shall be deemed to prevent the Assessing Authority from making an assessment or full assessment, as the case may be. [Explanation II - For the purposes of this section and Section 22, 'Assessing Authority' means the officer or authority who passed the earlier assessment order, if any, and includes the officer or authority having jurisdiction for the time being to assess the dealer. Explanation III - Notwithstanding the issu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as to whether a particular transaction is supply of goods or of work contract. It is important to note that in the case of M/s. Kone Elevator (India) Ltd. (supra), the assessee therein was required to install the lift as per requirement of the customer and the customer was required to make the site ready for the installation of the lifts. The Apex Court has held that the assessee therein divided the execution of the contract into two parts namely work to be initially done in accordance with the specifications laid down by the assessee and the supply of lift by the assessee . The work part in the contract was assigned to the customer and the supply part was assigned to the assessee. Here, the work part as well as supply part were assigned to the petitioner. It is not necessary for us to dwell upon the issue any further as it may prejudice the case of either party. Suffice it to say that there is material before the respondents to form a belief that the turnover of the petitioner has escaped the assessment. The other aspect of the case is that the assessing authority while framing the assessment order has overlooked the judgment of the Apex Court on the issue given in the case ..... X X X X Extracts X X X X X X X X Extracts X X X X
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