TMI Blog2011 (4) TMI 1025X X X X Extracts X X X X X X X X Extracts X X X X ..... Commissioner of Sales Tax, under section 67 of the Gujarat Sales Tax Act, 1969 (the Act) for revising the order dated March 31, 1998 of the Sales Tax Officer. The petitioner is working as a contractor for Sardar Sarovar Narmada Nigam Limited (hereinafter referred as, the Nigam ). The dates of the said works contracts range from July 16, 1990 to May 17, 1993. In all, there were four works contracts to be carried out by the petitioner for the Nigam. Under the provisions of the Act, tax is leviable on works contracts as provided by the Act, as the definition of sale in section 2(28)(c) includes transfer of property in goods (whether as goods or in some other form) involved in execution of a works contract. Section 55A of the Act provides for composition of tax in respect of execution of works contract. Under the said section, application is to be made for permission to pay tax as per appendix 2A of the Act by way of lump sum on the total value of the works contract. The application for permission at the relevant time was required to be made in form 35A and rule 33A of the Rules. Under appendix 2A, sales tax was payable under the composition scheme at the rate of two per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Sardar Sarovar Narmada Nigam Limited wherein, as per the opinion of the Assistant Commissioner (Enforcement), the rate of composition in respect of civil works would be two per cent. It is the case of the petitioner that during the course of assessment proceedings, the petitioner was informed that out of the four applications made by it under rule 33A and form 35A for permission to pay sales tax at two per cent, the first application dated September 8, 1991 had been found to be entered in the inward register on October 15, 1991 though, the application itself was not found in the papers and was also informed that the other three applications were not found in the case papers nor were they found to be entered in the inward register. The petitioner, therefore, once again furnished Xerox copies of the said applications at the time of assessment. Thereafter, the Sales Tax Officer passed an order of composition under section 55A of the Act on March 31, 1998 which incidentally was also the last date for passing an assessment order. The Sales Tax Officer also finalised the assessment order but before passing the same as per the Department's policy and rules, forwarded the papers t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment based upon the composition order having been approved by the Assistant Commissioner, another Assistant Commissioner cannot take the composition order in revision. In support of his submission, the learned advocate placed reliance upon a decision of a Division Bench of this High Court in the case of RPG Life Sciences Ltd. v. Commissioner of Sales Tax [2001] 124 STC 157 (Guj) rendered on April 24, 2001 in Special Civil Application No. 521 of 2001 wherein the court had held that once an authority had approved the order, it would not be appropriate for the authority approving the order to exercise powers of revision. On merits, it was submitted that the main ground for revising the order of composition is that the applications made by the petitioner were not found on record. It was submitted that by the notice dated February 15, 1995 issued under section 59 of the Act, the petitioner was called upon to submit details with regard to the applications filed by the petitioner under rule 33A(1) of the Rules in form 35A as well as regards any composition order having been made under section 55A of the Act. It was submitted that pursuant to the said notice, the petitioner had filed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter of Sales Tax Officer of Division I, Vadodara. That apart from this entry, in spite of verifying from the records, the application is not available on record. It was submitted that even if it is assumed for the sake of argument that the application dated October 15, 1991 had been made, then also, the application would be processed if it was pertaining to a particular contract and not for any prior or subsequent contract. Another submission advanced was that the circulars dated February 6, 1991 and June 9, 1993 extending the period for filing the application, inter alia, stipulated that if an application is made beyond the prescribed time-limit, tax and interest of the particular period were required to be paid. It was submitted that in the present case, the petitioner has not proved even the making of the initial application nor does the petitioner seem to have made the application later on and that even otherwise for the period in question, the petitioner has not paid the interest. Hence, it cannot be said that the so-called applications made by the petitioner were validly made. Next, it was submitted that pursuant to the application in form 35A, the petitioner had not fil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 20-6-93 The applications, therefore, appear to have been made on different dates from September 8, 1991 to June 20, 1993. The petitioner having made applications for composition appears to have been paying sales tax on the works contracts executed by it at the rate of two per cent under the composition scheme. By a notice dated February 15, 1995 issued under section 59 of the Act, the petitioner was called upon to produce details as regards having made application in form 35A in terms of rule 33A(1) of the Rules and as to whether any order had been made in form 35B under rule 33A(2) of the Rules for composition under section 55A of the Act. In reply thereto, the petitioner vide letter dated March 2, 1995 furnished details of the four applications giving the description of the work, reference number and date of the application and the date of posting thereof. The petitioner also stated that no permission had been granted by the Sales Tax Officer for any of the contracts. However, they were paying composition amount at the rate of two per cent for the works contract executed and filing returns accordingly. The petitioner also enclosed therewith additional se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... composition order. In the circumstances, it is apparent that the Assistant Commissioner had approved the order of assessment which was in terms of the composition order. Thereafter, by the impugned notice, the order made under section 55A of the Act permitting composition of tax is sought to be taken in revision by the Assistant Commissioner, in exercise of powers under section 67 of the Act. The composition order under section 55A of the Act as noted herein-above has been made on March 31, 1998 and the impugned notice has been issued on September 25, 2001 which is clearly beyond a period of three years from the date of the said order. Section 67 of the Act, inter alia, lays down that the Commissioner on his own motion within three years from the date of order passed by any officer appointed under section 27 to assist him, may call for and examine the record of any such order and pass such order thereon as he thinks just and proper within 12 months from the date of service of notice of revision. In the facts of the present case, the impugned notice has clearly been issued after the expiry of the period of three years from the date of the order sought to be revised, that is, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioner informed that the applications having not been found on the record, the same shall be considered as the petitioner not having filed any application under section 55A of the Act. In fact, on the basis of the applications on record or on the basis of the Xerox copies filed by the petitioner, the then Sales Tax Officer in 1998 passed the composition order under section 55A of the Act. Though, it is the case of the respondents that the original applications are not found on record, it may be noted that though the record of the case was produced before this court for its perusal, for reasons best known to the concerned authorities the record of the composition application was not produced before the court. Hence, the court was not in a position to ascertain as to on the basis of which applications the concerned officer at the relevant time had passed the order under section 55A of the Act. Be that as it may, as noticed earlier, the respondents have never brought it to the notice of the petitioner that the original applications were not on record and had never informed the petitioner that since the original applications were not found on record, the applications under section ..... X X X X Extracts X X X X X X X X Extracts X X X X
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