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2014 (7) TMI 488 - HC - VAT and Sales TaxIssuance of Form D - construction of road whether a manufacturing activity - Revenue contends that in view of Explanation-I to Section 13(1) of the U.P. VAT Act the petitioner, not being a manufacturer was not entitled for Form-D - Held that:- Petitioner has been granted a recognition certificate under Section 4-B(2) of the U.P. Trade Tax Act and in view of Rule 25-B(1) of the U.P. Trade Rules, the petitioner is entitled to avail concessional rate of tax provided he furnishes a certificate, which is called a declaration form to the selling dealer. Such provision is, however, non-existent under the U.P. VAT Act but concessional rate of tax is provided through notifications issued under Section 4 of the U.P. VAT Act Commissioner committed a manifest error in its order issued under Section 59 of the Act in holding that a person engaged in the construction of roads was not a manufacturer. The Commissioner further erred in holding that under the Explanation to Section 13(1)(e), the transfer of property in goods involved in the execution of a works contract amounts to a resale of goods and, therefore, the assessee was entitled to the benefit of input tax credit under Section 13 of the Act and cannot be called a manufacturer. The issuance of a show cause notice to the petitioner by the Deputy Commissioner (Assessment), based on this decision of the Commissioner, is also erroneous. The definition of the word "manufacturer" as defined under Section 2(u) of the U.P. VAT Act is solely relevant for the purpose of giving the benefit of the notification dated 10th January, 2008 issued under Section 4(4) of the U.P. VAT Act. Explanation to Section 13(1)(e) does not in any manner override the definition of the word "manufacturer" as defined under Section 2(u) of the Act . Order of the Commissioner was not passed in the case of the petitioner and, consequently, the petitioner could not file an appeal. However, the order of the Commissioner is binding on the Assessing Authority pursuant to which the show cause notice was issued to the petitioner. The Court is of the view that rule of alternative remedy is one of discretion and is not one of compulsion - writ petition was entertained in the year 2008 and an interim order was issued directing the authorities to issue Form-D. Affidavits have been exchanged and, consequently, it would not be appropriate to delegate the petitioner at this stage to avail the alternative remedy - Decided in favour of assessee.
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