TMI Blog2010 (3) TMI 1001X X X X Extracts X X X X X X X X Extracts X X X X ..... revision. In our opinion, circular does not lay down the correct position and is of no utility to buttress the submission raised by the petitioners in view of provision 2(t)(ii) read with section 9B of the Act. - W.P. Nos. 15798,15799, 15800 of 2006 - - - Dated:- 25-3-2010 - ARUN MISHRA AND SHRIVASTVA S. , JJ. ORDER:- The order of the court was made by ARUN MISHRA J. Writ petitions have been preferred by the assessees raising the question whether section 9B of the M.P. Commercial Tax Act, 1994 is applicable to the works contract, if yes, then what is the mode of determination of commercial tax. Facts are being referred to from W.P. No. 15798 of 2006. The petitioner is engaged in the business of construction works of Cen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lost when used in works contract. The resale ordinarily means sale of goods in the same form in which they were purchased without subjecting them to any process. Though there is sale as defined under section 2(t)(ii) of the Act, but, it is not a resale for levy of VAT under section 9B of the Act, value of these goods cannot be subjected to VAT under section 9B. It is further submitted that the expenditure incurred on account of labour, etc., cannot form a part of the contractual transfer price, simply because they are not valuable consideration for any goods. Revision was preferred against the assessment order. Revision has been dismissed vide order (P/5) dated March 21, 2006. Aggrieved by the assessment order and order passed in revisio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the similar or other form in the execution of the works contract can be subjected tax under section 9B of the Act. Section 2(t)(ii) defines sale thus: 2. Definitions. (t) 'Sale' with all its grammatical variations and cognate expressions means any transfer of property in goods for cash or deferred payment or for other valuable consideration and includes (i) . . . (ii) a transfer of property in goods whether as goods or in some other form, involved in the execution of a works contract; Section 9B of the Act is as follows: 9B. Levy of tax in special circumstances. (1) Every dealer liable to pay tax under this Act, whose turnover in the year preceding the commencement of the Madhya Pradesh Vanijyik Kar (Sansh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 9B has to be considered with the definition of sale . The sale in section 2(t)(ii) includes transfer of property in goods whether as goods or in some other form . The submission raised by the petitioners that as the goods are not used in same form then it would not amount to resale cannot be accepted in view of above provision. In our opinion, the tax has been rightly levied under section 9B of the Act. Coming to circular dated May 1, 1997 issued by the Commissioner relied upon by the petitioners: in the aforesaid circular it was mentioned that resale as provided in section 9B covers sale of goods made in the same form in which form it has been purchased. It is further provided that in case such goods are used in process of construct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... endering any finding, is not sustainable. Similarly, in Somani Bros. v. Commr. of Sales Tax, M.P. [2001] 26 LTD 13 (MP) this court held that rate of tax, determined by the Commissioner without examining the particular commodity in the light of relevant entries and factual material filed by the petitioner cannot be said to be sustainable. Even determination of rate of tax cannot be said to be binding overlooking the factual matrix and legal aspects. In the instant case, the circular of the Commissioner was rightly not relied upon before the assessing authority as well as in the course of revision. In our opinion, circular does not lay down the correct position and is of no utility to buttress the submission raised by the petitioners in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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