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TMI Blog2025 (2) TMI 1X X X X Extracts X X X X X X X X Extracts X X X X ..... nd that the appellant had opted for composition under section 6 of the Delhi Sales Tax on Works Contract Act and so there was no need to examine whether the transaction of Rs. 2,59,19,818/- was in connection with inter-State sale or not. 2. The appellant claims to be engaged in the business of designing, manufacture, supply, installation and commissioning of elevators. The manufacturing unit of the appellant is located at Ghaziabad and the registered office is at Delhi. The appellant has branches across India. The appellant claims that the orders from the customers are booked by the branch offices depending upon the requirement of the customers and are then transmitted to the Ghaziabad factory for execution. Parts of the elevators are then manufactured at the Ghaziabad factory and sent directly to the sites of the customers in other States, including Delhi. According to the appellant, it had executed "works contract" during the year 2002-03 for designing, manufacture, erection and commissioning of elevators for various customers at Delhi for a total value of Rs. 2,59,99,073/-. 3. The Delhi Sales Tax on Works Contract Act is an Act to levy and collect the taxes on the transfer of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation certificate, shall not be entitled to opt for composition of tax under this section. (2) No tax shall be payable under this section on the turnover relating to the amount paid to a sub-contractor as consideration for the execution of works contract, whether wholly or partly, subject to the production of proof as may be prescribed that such sub-contractor is a registered dealer liable to tax payment of composition of tax under the Act as the case may be, and that the turnover of such amounts is included in the return of turnover filed by such sub-contractor and tax or the composition as the case may be has been paid thereupon. (3) Every dealer who elects to pay tax under this section shall apply in the prescribed form to the assessing authority to be permitted to pay the amount of tax under sub-section (1) and, on being so permitted, in the prescribed manner and form, shall pay the same." 8. Section 7 deals with deduction of tax at source and the relevant portion is reproduced below: "7. Deduction of tax at source. - (1) Every person, other than individual and Hindu undivided family responsible for making payment to any dealer hereinafter this section referred to as "th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on Delhi office for execution of work contract. In the Sales statement the claim for deduction of stock inter state of the deemed sale is not admissible in this case as the dealer has opted for composition of tax in section 6 of DST WC Act. As per provision of section 6 of DSTWC Act, no deduction any kind is given to the contactor except turnover relating to sub contractor. Therefore the total contract value received/receivable during quarter/year are liable to tax @ 4%. Hence the total value of contract is Rs. 25999073/- is taxed @ 4% with interest thereon." 13. Under section 16(1) of the Delhi Sales Tax on Works Contract Act, an appeal can be filed against the said assessment order by taking recourse to the provisions of the Delhi Sales Tax Act, 1975 the Delhi Sales Tax Act and section 43(1) of the Delhi Sales Tax Act provides for an appeal to the prescribed authority. 14. The appellant filed an appeal before the Deputy Commissioner (Appeal) under section 43(1) of the Delhi Sales Tax Act against the order of the assessing authority. The Deputy Commissioner (Appeal), by order dated 11.03.2005, rejected the appeal and the relevant portions of the order are reproduced below: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... section 6 of DSTWC Act and it was allowed. The contention of the dealer is as the lifts were manufactured and moved from their unit at Ghaziabad to Delhi the cost of the lifts amounting to Rs. 25919818.00 are interstate sales, therefore, cannot be taxed under DSTWC Act. ***** The dealer had opted for composition under section 6, therefore the contractor is liable to pay by way of composition at 4% on the aggregate value of works contract without availing any deduction except amount paid to the sub contractor, if any, therefore the appellant is liable to pay tax at 4% on the total value of the contract. As the dealer had opted for composition which was already allowed there is no need to go into the question whether the transaction amounting to Rs. 25919818/- was interstate sales or not. In my view, the interpretation made by AA in the assessment order is in accordance with law and I uphold the same. Therefore the appeal is dismissed." ( emphasis supplied ) 15. Feeling aggrieved with the order dated 11.03.2005 passed by the Deputy Commissioner (Appeal), the appellant filed an appeal before the Appellate Tribunal under section 43(2) of the Delhi Sales Tax Act. The Appellate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ractor to the contractee constitute a sale in the course of inter state trade or commerce u/s 3 or 4 or 5 as the case may be of the Central Sales Tax Act and hence appellant is not liable to pay tax as assessed against him for the contract of work of execution i.e. supply and commissioning of Elevators. On the other hand, Ld. Counsel for the Revenue submitted that since the appellant has opted for composite scheme and also availed benefit there under by filing return as composite dealer for the assessment year in question, Sec. 6 would apply in toto and Sec. 5(4) has no application when r/w proviso to clause 1 of Sec. 6 which reads as under: ***** Section 6 as referred to above has to be read with clause 4 of Sec. 5. The dealer who makes inter state purchase of material used in the execution of work contract on the strength of his registration certificate is not entitled to opt for composition of tax under this scheme but when the appellant himself applied for composition scheme as was accepted by the assessing authority, the appellant is debarred from invoking clause 4 of Sec. 5 of the DST on Works Contracts Act, 1999 as it was appellant in the present case who opted for compo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Appellate Tribunal under section 43(2) the Delhi Sales Tax Act. The said appeal was dismissed by order dated 30.06.2014.
21. The order dated 30.06.2014 was certainly not passed by the Appellate Tribunal under the provisions of the CST Act. An appeal would, therefore, not lie under section 20 of the CST Act against the order of the Appellate Tribunal before this Tribunal as an appeal to this Tribunal will lie under section 20 of the CST Act against any order passed by the highest Appellate Authority under the CST Act which would be an order passed under section 18A of the CST Act. In fact, the appellant did have a remedy against the order dated 30.06.2014 of the Appellate Tribunal under section 45 of the Delhi Sales Tax Act by requiring the Appellate Tribunal to refer the matter to the High Court on any question of law arising out of such order, but that remedy was not exercised by the appellant and instead this appeal was filed under section 20 of the CST Act, which appeal is clearly not maintainable.
22. This appeal would, therefore, have to be dismissed as not maintainable and is, accordingly, dismissed.
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