TaxTMI 
TaxTMI 
2013 (2) TMI 682
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....8 OF 2013 @ SLP(C) NO. 15062 of 2010 ,CIVIL APPEAL NO.1849 OF 2013 @ SLP(C) NO. 15065 of 2010 ,CIVIL APPEAL NO.1869 OF 2013 @ SLP(C) NO. 19369 of 2010 ,CIVIL APPEAL NO.1870 OF 2013 @ SLP(C) NO. 19370 of 2010 ,CIVIL APPEAL NO.1871 OF 2013 @ SLP(C) NO. 19371 of 2010 ,CIVIL APPEAL NO.1872 OF 2013 @ SLP(C) NO. 19372 of 2010 ,CIVIL APPEAL NO.1873 OF 2013 @ SLP(C) NO. 19373 of 2010 ,CIVIL APPEAL NO.1874 OF 2013 @ SLP(C) NO. 19374 of 2010 ,CIVIL APPEAL NO.1875 OF 2013 @ SLP(C) NO. 19375 of 2010 ,CIVIL APPEAL NO.1876 OF 2013 @ SLP(C) NO. 19376 of 2010 ,CIVIL APPEAL NO.1877 OF 2013 @ SLP(C) NO. 19378 of 2010 ,CIVIL APPEAL NO.1878 OF 2013 @ SLP(C) NO. 19379 of 2010 ,CIVIL APPEAL NO.1879 OF 2013 @ SLP(C) NO. 19380 of 2010 ,CIVIL APPEAL NO.1880 OF 2013 @ SLP(C) NO. 19382 of 2010 ,CIVIL APPEAL NO.1881 OF 2013 @ SLP(C) NO. 19384 of 2010 ,CIVIL APPEAL NO.1882 OF 2013 @ SLP(C) NO. 19385 of 2010 ,CIVIL APPEAL NO.1883 OF 2013 @ SLP(C) NO. 19386 of 2010 ,CIVIL APPEAL NO.1884 OF 2013 @ SLP(C) NO. 19388 of 2010 ,CIVIL APPEAL NO.1885 OF 2013 @ SLP(C) NO. 19389 of 2010 ,CIVIL APPEAL NO.1886 OF 2013 @ SLP(C) NO. 19391 of 2010 ,CIVIL APPEAL NO.1887 OF 2013 @ SLP(C) NO. 19392 of 2010 ,CIVIL APPEAL NO.1888 O....
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....13 @ SLP(C) NO. 25016 of 2010 ,CIVIL APPEAL NO.1916 OF 2013 @ SLP(C) NO. 25017 of 2010 ,CIVIL APPEAL NO.1917 OF 2013 @ SLP(C) NO. 25018 of 2010 ,CIVIL APPEAL NO.1935-36 OF 2013 @ SLP(C) NO. 2620-2621 of 2011 ,CIVIL APPEAL NO.1934 OF 2013 @ SLP(C) NO. 2625 of 2011 ,CIVIL APPEAL NO.1937 OF 2013 @ SLP(C) NO. 2630 of 2011 ,CIVIL APPEAL NO.1938 OF 2013 @ SLP(C) NO. 2631 of 2011 ,CIVIL APPEAL NO.1939 OF 2013 @ SLP(C) NO. 2633 of 2011 ,CIVIL APPEAL NO.1940 OF 2013 @ SLP(C) NO. 2636 of 2011 ,CIVIL APPEAL NO.1941 OF 2013 @ SLP(C) NO. 2637 of 2011 ,CIVIL APPEAL NO.1918 OF 2013 @ SLP(C) NO. 26469 of 2010 ,CIVIL APPEAL NO.1942 OF 2013 @ SLP(C) NO. 2647 of 2011 ,CIVIL APPEAL NO.1943 OF 2013 @ SLP(C) NO. 2648 of 2011 ,CIVIL APPEAL NO.1944 OF 2013 @ SLP(C) NO. 2651 of 2011 ,CIVIL APPEAL NO.1945 OF 2013 @ SLP(C) NO. 2653 of 2011 ,CIVIL APPEAL NO.1919 OF 2013 @ SLP(C) NO. 27966 of 2010 ,CIVIL APPEAL NO. 1920 OF 2013 @ SLP(C) NO. 27967 of 2010 ,CIVIL APPEAL NO.1921 OF 2013 @ SLP(C) NO. 34079 of 2010 ,CIVIL APPEAL NO.1922 OF 2013 @ SLP(C) NO. 34085 of 2010 ,CIVIL APPEAL NO.1923 OF 2013 @ SLP(C) NO. 36473 of 2010 ,CIVIL APPEAL NO.1924 OF 2013 @ SLP(C) NO. 36474 of 2010 ,CIVIL APPEAL NO.1925 OF 2013 @ ....
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....cuting the civil works for repairing, construction of buildings, etc. The materials used by the dealers in execution of the said civil works is either purchased within the state or from outside the state attracting liability for payment of tax under the provisions of the Act as envisaged under Section 3-F of the Act. Section 3 of the Act provides for levy and incidence of tax by which the tax is levied on every transaction in the nature of sales and purchases of goods at the 'rates of tax' stipulated in respect of different goods in Section 3-A of the Act. 7. The Government of Uttar Pradesh had announced a scheme, known as "Composition Scheme", under the provisions of Section 7-D of the Act under which the state government is empowered to accept a lump sum amount in-lieu of tax that may be payable by the dealer in respect of such goods or class of goods and for such period as may be agreed upon. For that purpose, the dealer is obliged to execute an agreement of undertaking to pay the sales tax in lump sum and the same was assessed at an agreed rate as envisaged under the Act itself. The scheme as introduced by the legislature provides for a bilateral agreement between the ....
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....luded in the definition of 'Tax' with effect from 24/3/2005 vide Act No. 9 of 2005. The State Development Tax had been enforced with effect from 1/5/2005 vide State Govt. Notification No. 1308 dated 28/4/2005. Thus besides recovering the composition fee from dealers opting composition scheme prior to 1/5/05, the recovery of State Development Tax had also to be ensured.(Emphasis supplied by us) 9. The assessing authorities are bound by the circular instruction issued by the Commissioner and therefore in pursuance thereof have quantified the tax payable by the dealers, who had once opted for composition facility in respect of State Development Tax also. The said circular and the orders of assessment based on such circular has prompted the Assessees to approach the High Court by filing Writ Petitions under Article 226 of the Constitution of India. The main prayer in the Writ Petitions was to declare void the circular instructions issued by the Commissioner dated 04.06.2007 and also to set aside the levy and demand of the State Development Tax in addition to the composition amount which was already agreed upon by the dealers and the assessing authorities. 10. We have heard Le....
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....itting out, improvement, modification, repair or commissioning of any movable or immovable property. 13. Section 3 of the Act is the charging provision. Section 3-A of the Act provides for rates of tax payable by a dealer under the Act. The said section is as under:- "3-A. Rate of tax.-(1) Except as provided in Section 3-D, the tax payable by a dealer under this Act shall be levied:- (a) on the turnover in respect of "declared goods", at the point of sale to the consumer at the maximum rate for the time being specified in Section 15 of the Central Sales Tax Act, 1956, or where the State Government, by notification, declares any other single point or a lesser rate, at such other point or at such lesser rate; (b) on the turnover in respect of such goods, other than the goods referred to in Clause (a), at such point and at such rate, not exceeding fifty per cent, as the State Government may, by notification, declare, and different points and different rates may be declared in respect of different goods. (c) on the turnover in respect of goods, other than those referred to in Clause (a) or Clause (b), at the point of sale by manufacturer or importer at the rate of ten percent. (2....
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....tax at the rate of one per cent on a dealer whose aggregate turnover as referred to in Sub-section (2) of Section 3 exceeds more than fifty lakh rupees, in addition to the tax payable under the Act. Such tax requires to be levied and collected notwithstanding any rebate, concession or exemption as provided under the Act. Sub-section (2) of Section 3-H of the Act had authorized the assessing authority to levy and collect turnover tax separately in addition to the money payable by way of composition money under Section 7-D of the Act. The other Sub-sections of Section 3-H are not necessary for disposal of these appeals and therefore they are not noticed. 16. The aforesaid section is deleted and a new provision is inserted by the State legislature by U.P. Act 9 of 2005, dated 24.03.2005 with effect from 01.05.2005. The said section provides for the levy of the State Development Tax. In order to appreciate the contentions canvassed by Learned Counsel appearing for the parties, it is desirable to extract Sub-Section 3-H of the Act before and after its amendment. They are as under:- "Section 3-H of the Act prior to 1.5.2005. Section 3-H, Turnover Tax:- (1) There shall be levied a tur....
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....y. (c) such goods as may be specified by notified by the State Government. 17. The State Legislature by inserting the amended provisions by the Act 9 of 2005 has introduced the levy and collection of the State Development Tax. Except for some changes, the State Development Tax bears resemblance to the levy and collection of the Turnover Tax. We say so, for the reason that the State Development Tax is levied on a particular class of dealers at a particular rate. What is added in Section 3-H of the Act, after its amendment is that the said section will operate only for a period of five years from the date of issuance of the notification by the State Government. 18. Sub-section (2) of Section 3-H of the Act provides for the compounding facility even in respect of the State Development Tax. This is yet another change that has been brought in by the State Legislature while inserting Section 3-H of the Act with effect from 01.05.2005. The other Sub-sections of Section 3-H of the Act are not necessary for the purpose of disposal of these Civil Appeals. 19. Section 7 of the Act provides for determination of turnover and assessment of tax. Section 7-D of the Act commences with a non-obs....
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....ng notification. The said section is also a charging provision, since it has all the ingredients of the charging provision as explained by this Court in Ganga Saran and Sons (Pvt.) Ltd., Calcutta v. Income Tax Officer and Ors. reported in: (1981) 3 SCC 143. The four components of incidence of tax was explained as, first, the character of the imposition known by its nature which prescribes the taxable event attracting the levy, the second, is a clear indication of the person on whom the levy is imposed and who is obliged to pay the tax, the third, is the rate at which the tax is imposed, and the fourth, is the measure or value to which the rate will be applied for computing the tax liability. The levy would only exist in law when all the aforesaid components are clearly and definitely ascertainable. 21. The power to levy tax is an inherent attribute of sovereign function of the State Government by which the Government under the charging provision has the power to levy tax on the taxable turnover of the dealer at the rate prescribed under the provisions of the Act. The said rate of tax as prescribed by the legislature under the charging section can be altered when the legislature em....