TMI Blog2023 (3) TMI 734X X X X Extracts X X X X X X X X Extracts X X X X ..... s etc. cannot be said to be arbitrary. Consequently, in this aspect the Court is not inclined to accept the plea of SAIL and remand the matter to the AO. In other words, the question is answered in the affirmative i.e. in favour of the Department and against the Assessee. Whether the learned Tribunal is justified in holding that the receipts of hire charges recovered from contractors by appellant falls within ambit of deemed sales as contemplated u/s 2(g)(iv) of the Orissa Sales Tax Act? - whether the receipt of hire charges of machineries from inter-department of the assessee for account purpose is sale to self as contemplated u/s 2(g) (iv) of the Orissa Sales Tax Act? - HELD THAT:- Whether in fact the Tribunal asked SAIL to produce the full contract is not clear from the impugned order of the Tribunal. On its part, with SAIL having offered to produce the entire contract, the Tribunal could have asked SAIL to produce it before deciding the issue - With SAIL offering to produce the entire contract and the matter any way being remanded to the AO as regards the other questions, the Court considers it appropriate to refer questions also to the AO for being considering afresh by e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Central Sales Tax Act, 1956 (CST Act). 5. As regards question b , the relevant facts are that the sales effected by SAIL in its canteen in the aforementioned plant during the Assessment Years (AYs) in question i.e. 1991-92 to 1995-96 was not included in its gross turnover. The contention of SAIL was that the canteens were maintained under the provisions of the Factories Act, 1948; that canteen sales were treated as service rendered by SAIL to its employees and that the canteen was being run on a purely no-profit basis with the supplies subsidised by SAIL. Accordingly, SAIL contended that the canteen sales did not constitute its business and were, therefore, not amenable to sales tax under the OST Act. 6. The Assessing Officer (AO) i.e. the Sales Tax Officer (STO), Rourkela I Circle, Udit Nagar noted in the assessment order for 1991-92 that in the absence of detailed accounts, the total sales in the canteen had to be taxed on an estimate on the basis of total purchase turnover. Of the total purchases, 20% was allowed towards subsidy. Of the balance amount, the total sale was apportioned as 70% towards food and 30% towards sale of tea, coffee and snacks etc. Similar order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , this issue also could be sent back to the AO for a fresh decision. On the other hand, it was contended by Mr. Sunil Mishra on behalf of the Department, that this issue was not raised before the Tribunal but raised before this Court for the first time. 10. As far as the above contention is concerned, the Court is unable to agree with it since it is plain from a perusal of not only the orders of the AO and the ACCT but also of the Tribunal that the issue was raised by SAIL and discussed by the Tribunal. As noted hereinbefore the Tribunal has, while rejecting the plea of sale, held that the entire sales in the canteen should be taxed @ 4% without accounting for sale of tax free goods and first point tax paid goods. The ground on which SAIL s plea was rejected was that adequate materials had not been placed before the AO to enable him to come to a conclusion as to what extent the sales in the canteen included sales of tax-free goods and first point tax paid goods. 11. Having carefully considered the above pleas, the Court is of the view that if indeed SAIL was unable to produce materials to show to what extent the canteen sales included sale of tax-free goods and first point ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such certificate the concerned Department engaged its own operator to run the machine. Cost of operation for each machine is fixed earlier on hourly basis. Even when one Department of the appellant uses the machines of other Department, the use Department is charged for such use on shift or hourly basis. We plead that the ownership and control over the machinery during the period of use by the hirer remained always with the appellant and, therefore, the receipts by the appellant never come within the ambit of deemed sale as envisaged U/s. 2(g)(iv) of the OST Act. 15. Before the Tribunal reliance was placed by SAIL on the decisions in Rashtriya Ispat Nigam Ltd. v. CTO 1990 (77) STC 182; Tripura Bus Syndicate v. State of Tripura (1997) 105 STC 409 and Kandoi Transport v. Sales Tax Officer (1992) 43 STC 167. 16. The Tribunal observed in the impugned order that to understand the entire gamut of transactions, it was necessary for the Tribunal to examine the agreement between SAIL and the contractor but instead of furnishing the agreement, a copy of what is said to be relevant portion Mukand Contractor No.104.I in the form of excerpt was furnished before us from which it is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iled the relevant extract only and the petitioner is ready and willing to produce the original contract at the time of hearing and as such the order is vitiated by imposing tax on this count. 21. Whether in fact the Tribunal asked SAIL to produce the full contract is not clear from the impugned order of the Tribunal. On its part, with SAIL having offered to produce the entire contract, the Tribunal could have asked SAIL to produce it before deciding the issue. 22. If the contract in question does bear out the contention of SAIL that the contractor could use the machinery only inside the plant premises; only for the work of SAIL and was not permitted to take the machinery outside the plant for any other work and further that SAIL retained control of machinery then the case would be different from the one in Krishna Chandra Behera (supra) which has been relied upon by the STO and the ACCT to negative the contention of SAIL. In such event the fact situation would be very similar to the one in Rashtriya Ispat Nigam (supra), Tripura Bus Syndicate (supra) and Kandoi Transport (supra). 23. With SAIL offering to produce the entire contract and the matter any way being rema ..... X X X X Extracts X X X X X X X X Extracts X X X X
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