Heard learned counsel for the revisionist assessee Sri Shubham Agrawal and Sri Nimai Das learned standing counsel for the State.
This revision has been filed by the assessee against an order of the Tribunal dated 16.1.2009 for the assessment year 1991-92.
The questions of law referred to are as under:
"(i) Whether the tribunal was justified in denying the benefit of deduction of U/s.3-F (2)(b)(i) of the U.P. Trade Tax Act to the applicant, by not treating the transaction to be an inter- State sale only because the Central Sales Tax has not been paid?
(ii) Whether the tribunal was justified in treating the inter- State sale of Bitumen & Rori to be taxable under the U.P. Trade Tax Act by over looking the certificate dated 23.10.96 given by the project manager NOIDA which conclusively proves that the movement of goods from Delhi to NOIDA was in pursuance of prior contract of sale, and the goods have already been appropriated before the movement?
(iii) Whether tribunal was justified in denying the benefit of deduction under section 3-F (2)(b)(i) of U.P. Trade Tax Act which is in the teeth of law declared by this Hon'ble Court in the case of M/s. Santosh and Company and M/s IRCON Ltd. ?
(iv) Whether tribunal was justified in law, in misconstruing the judgment of PNC construction and treating the deemed sale of Bitumen and Rori to be the sale of hot mix material and treating it to be unclassified item?"
This matter has been argued at length by Sri Shubham Agrawal whose contentions are that in view of the Apex Court judgment in the case of Santosh & Co. versus C.T.T. reported in 1966 (17) S.T.C. 473 and the decision of this Court in the case of Santosh & Co. versus C.T.T. reported in 1999 U.P.T.C. 823, the assessee is entitled to the benefit of deduction under section 3-F (2)(b)(i) of the Act for the import of the Rori which he has purchased out of State of U.P. The tribunal has disallowed deduction sought by the assessee on the ground that he was not able to establish that he has paid Central Sales Tax on the Rori, which was imported.
The contention of the learned counsel for the assessee is that requirement of the section is not that it should be established that Central Sales Tax has actually been paid but simply that it should be established that the goods were brought from out of State of U.P. and were to be taxed under the Central Sales Tax Act.
The State has filed counter affidavit. In para 4 and 5 of the counter affidavit, it is admitted to the State that Bitumen and Rori were hot mixed at Delhi under the supervision of the engineers of the contractor and then brought to NOIDA at the site of the construction. It has also come on record that Rori was purchased from outside the State of U.P. while Bitumen was purchased at Mathura.
Thus in view of the averments in para 4 and 5 of the counter affidavit, it becomes clear that the Rori which was purchased from outside the State of U.P. would be excisable to tax under the Central Sales Tax Act and therefore the rate of the tax which should have been imposed on Rori would be the rate under the Central Sales Tax ACt, which according to the assessee was 4% and he has been charged at 7%.
The order dated 17.5.2003 of the tribunal is therefore modified to the extent that the assessee will be charged the rate of the tax for the Rori which was prevalent at that time under the Central Sales Tax Act . Other than this modification, the impugned order will stand as it is.
The revision is disposed of as above. No costs.
Order Date :- 12.1.2010 rk