9911796707
TMI Blog2023 (3) TMI 1269X X X X Extracts X X X X X X X X Extracts X X X X ..... ed in execution of works contract consisting of work of Air conditioning system at different places of Odisha. Assessment under Section 12(4) of the O.S.T. Act, 1947 was completed treating the works executed by the petitioner as indivisible contract for the purpose of taxation and accordingly the order of assessment was passed raising an extra demand of Rs.27,001/-. Subsequently, on scrutiny by A.G. Audit Party, an objection was raised and they pointed out that the contracts executed by the petitioner for providing Air Conditioning system is divisible in nature comprising one is for supply of materials and the other is for execution of works. In support of their observation, they cited the contract entered into by the petitioner with M/s Sri Gopinath Weavers Co-Operative Spinning Mill Ltd., Bhubaneswar, where separate provisions were made for supply of goods and installation of equipments. The A.G Audit Party also observed that there is underassessment of tax, as the turnover relating to payments received towards supply of goods has been taxed @ 4%. They suggested for taxation of supply portion @ 13%. The objection of audit party is that it has been wrongly taxed @ 4% on works cont ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (iii) Whether or not under the facts and circumstances of the case, opinion of A.G. Audit Party can constitute information on the basis of which A.O. could reopen assessment U/s. 12(8) of the O.S.T. Act. (iv) Whether or not under the fact and circumstances of the case, the Tribunal is duty bound to examine the important contentions with case laws on the point in issue, specifically brought to the notice of the Tribunal and record definite conclusion in respect of each of them. (v) Whether or not under the fact and circumstances of the case, the Assessing Officer was justified in law in not following the principle of "Doctrine of merger" and initiating proceeding for reassessment under Section 12(8) of the O.S.T. Act, 1947 even after such objection raised by the assessee. (vi) Whether or not under the fact and circumstances of the case, the Assessing Officer was justified not to supply the certified copy of the order sheet indicating the basis for re-opening the assessment even though the assessee requested for the same." 4. In the above backdrop of the case, this Court formulated the following questions of law for adjudication:- (i) Whether or not under the facts and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d not take the same into consideration and passed the order impugned. As a consequence thereof, the order so passed by the Second Appellate Authority cannot be sustained in the eye of law and, therefore, the said order is liable to be quashed. 6. Mr. Sunil Mishra, learned Additional Standing Counsel contended that once the petitioner discharged his duty and responsibility in two different ways, the audit party raised objection. Thereby, the work undertaken by the petitioner for the assessment year in question is divisible one and it cannot be considered as composite one. Accordingly, the petitioner is liable to pay tax @ 13% instead of 4%. As such, the order passed by the second appellate authority is well justified and does not warrant interference by this Court. 7. The pleadings available on record reveal that the petitioner-dealer, as a limited company, entered into an agreement with Sri Gopinath Weavers Limited for supply, erection, including the installation and commissioning of humidification of plant including the construction of foundation on which the plant would be installed comprising of several units and assembly and sub-components. After the foundation was laid down, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be works contract exigible to tax @ 4% instead of 13% now held by the Tribunal. The Division Bench of the Odisha Sales Tax Tribunal in S.A.No.438 of 2001-02 passed the order entirely different from the order of the Full Bench as well as the Divisional Bench of the Odisha Sales Tax Tribunal previously made even if the contracts and the nature of execution of the work for all the preceding and succeeding years are similar. 9. The law regarding supply, erection and installation of machineries constituted the works contract as a whole for last so many years was also upheld by the Full Bench as well as Division Bench of the Odisha Sales Tax Tribunal and the State of Odisha wherein was the appellant had not raised any objection in the higher forum but accepted the principle of law settled therein. 10. The law regarding contract for supply, erection and thereafter installation of machinery was entertained as contract work and no independent sale had ever been made since the principles of law have already been decided in number of cases also and the petitioner is deriving the principles from the case of Commissioner of Sales Tax v. Brimco Plastic Machinery Pvt. Ltd., 99 STC 140 (Bombay) ..... X X X X Extracts X X X X X X X X Extracts X X X X
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