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2019 (8) TMI 376

..... ional Highways Authority of India - Section 3-F(2)(b) of the U.P. Trade Tax Act, 1948 - HELD THAT:- Under Section 3-F(2)(b)(i) read with Section 3-F(1)(b) of the U.P. Act, it is the statutory mandate that the amount representing the sales value of goods covered by Sections 3, 4 and 5 of the Central Act have to be necessarily excluded from the value of the works contract for the purposes of subjecting the same to assessment under the U.P. Act - the benefit that was being claimed by the assessee was not by way of exemption but a claim depending on the jurisdictional issue i.e. the state legislature did not have the legislative competence to impose tax on goods being imported to the State solely for the purpose of execution of the works contra .....

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..... al, Allahabad dated 19.9.2006 in second appeal no. 192 of 2006 for A.Y. 2002-03 (U.P.). By that order, the Tribunal has partly allowed the second appeal filed by the assessee. However, the benefit of Sections 3, 4 and 5 of the Central Sales Tax Act, 1956 (hereinafter referred to as the Central Act) with respect to purchase of cement and bitumen for the purposes of execution of works contract awarded to the assessee by National Highways Authority of India has been declined. 2. Heard Sri Shubham Agarwal, learned counsel for applicant-assessee and Sri B.K. Pandey, learned Standing Counsel for revenue. 3. The revision has been admitted without reference to any specific question of law. However, it has been pressed on the following question of l .....

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..... ), which have been described as agreement for supply of material, executed on 19.5.2001 between the assessee-M/s Centrodorstroy and M/s Mukand Ltd. Perusal of those contracts reveal that M/s Mukand Ltd. had been authorized and engaged to procure material in the quantities and specifications made by the assessee for execution of the aforesaid two contracts. 6. The aforesaid arrangement is further disclosed to have been given effect to, by dispatch of various quantities of cement and bitument from different places outside the State of U.P. through separate invoices raised by manufacturer of those goods such as M/s Birla Corporation Ltd., Satna and M/s Prism Cement Ltd., Satna to "M/s Centrodorstroy A/C M/s Mukand Ltd." at different .....

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..... fact that the assessing authority of M/s Mukand Ltd., may have drawn an inference that the goods had been purchased by M/s Mukand Ltd., would have no binding effect on the present assessee, who was not a party in those proceedings. 9. Reliance has been placed on the decision of learned single Judge of this Court in Commissioner of Trade Tax Vs. S/s. Indian Railway Construction Company, Agra, (2005 UPTC 984), to submit that the principle to be applied was whether the goods in question had moved from outside the State of U.P. to be applied to the works contract awarded to the assessee or whether those goods had actually been applied to that contract alone. The fact that there was no contract stipulation in the present case, such as had been t .....

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..... the governing conditions of the written contract between the parties that led this Court to grant relief of acceptance of the claim. 12. Having heard learned counsel for the parties and having perused the record, under Section 3-F(2)(b)(i) read with Section 3-F(1)(b) of the U.P. Act, it is the statutory mandate that the amount representing the sales value of goods covered by Sections 3, 4 and 5 of the Central Act have to be necessarily excluded from the value of the works contract for the purposes of subjecting the same to assessment under the U.P. Act. That principle is a reflection of the law laid down by the Supreme Court in Gannon Dunkerley (supra) and it is wholly consistent with the same. Therefore, the benefit that was being claimed .....

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..... of execution of works contract. In that regard, the assessee also claims to have set up an alternative plea that the original movement is not treated to be one occasioned by a pre-existing works contract. Then, there was a sale in the course of transit of goods by endorsement. 14. The aforesaid plea does not appear to have been considered by the Tribunal to any extent and the Tribunal appears to have rejected the claim on over simplistic and erroneous reasoning that the assessee had not informed NHAI about the goods that were applied to the execution of the works contract. 15. The aforesaid reasoning and the further observations with respect to absence of specific stipulations in the written contract are found to be extraneous to the issue. .....

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