TaxTMI 
TaxTMI 
2021 (3) TMI 175
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.... a rectification order allowing credit for the balance amount of unadjusted TDS running to the extent of Rs. 40,13,050/- 4. The details of the amounts involved in the present writ petition as follows: Sl.No. Section Particular Tax Demanded 1 7-C of the TNGST Act, 1959 Denial of payment of Tax on compounding rate of 25,43,76,351.00 Rs. 10,63,46,942/- 2,86,92,151 2 Rule 6-C (iii) of the TNGST Rules, 1959 Demand on freight and pumping charges of Rs. 1,02,33,892/- 6,39,61,82 5.00 3 Section 7-F (3) & (4) of the TNGST Act, 1959 Adjustment of TDS paid by the clients of the Petitioner to whom the petitioner had rendered work contract. 40,13,04 1.00 5. According to the petitioner, it is engaged in works contract, manufacturing and trading in goods all over the country. 6. Against the said order, the petitioner had preferred an appeal for the earlier passed which culminated in a final order of this Court in Tax Case Revision in T.C.Nos.10 & 11 of 2013 wherein a Division Bench of this Court had allowed the appeal . 7. It is therefore submitted that the impugned order passed by the 2nd respondent Appellate Joint Commissioner (CT) (F A....
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....erred to in the order of the Tribunal, it is clear that the nature of works entrusted to the assessee is not supplying ready mix concrete mixture simpliciter; on the other hand, the assessee was to provide men and materials in laying concrete mixture on the area specified by the purchaser. The supply had to be done through its staff and that the assessee was responsible for quality of the concrete and the laying also. Further in the event of any leakage arising therefrom in future, the responsibility was cast upon the assessee to compensate the same. When that being the case, we do not find any justifiable ground in the Tribunal's view that on the mere absence of the word "works contract" in the agreement, the transactions have to be treated as sale. 8. Thus, an going through the nature of the work executed and the agreement and the responsibility cast upon the assessee on the quality, we have no hesitation in accepting the plea of the assessee that the transaction is one of works contract and that the assessee is entitled to have the benefit of exemption as had been pointed out in Government order referred to in circular dated April 29, 2004, viz., G.O. Ms. No. 50/90/....
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....(SC) v) G.Veerappa Pillai, Proprietor, Sathi Vilas Bus Service, Porayar, Tanjore District, Madras vs. Raman and Raman Limited, Kumbakonam, Tanjore District and Three Others, 1952 SCR 583: AIR 1952 SC 192 vi) Shama Prashant Raje vs. Ganpatrao and Others , (2000) 7 SCC 522 vii) Assistant Commercial Taxes Officer vs. Kansai Nerolac Paints Limited, (2010) 6 SCC 756 viii) A.P.SRTC and Others vs. G.Srinivas Reddy and Others, (2006) 3 SCC 674 ix) Cholan Roadways Ltd., vs. G.Thirugnanasambandam, (2005) 3 SCC 241 x) Institute of Chartered Accountants of India vs. L.K.Ratna and Others, (1986) 4 SCC 537 xi) Arjun Khiamal Makhijani vs. Jamnadas C.Tuliani and others, (1989) 4 SCC 612 xii) Shri Sitaram Sugar Company Limited and Another vs. Union of India and Others, (1990) 3 SCC 223 xiii) Trambak Rubber Industries Ltd., vs. Nashik Workers Union and Others, (2003)6 SCC 416 xiv) Shri Sohan Lal vs. Union of India and Another, 1957 SCR 738 : AIR 1957 SC 529 xv) Thansingh Nathmal and five Others vs. Superintendent of Taxes, Dhubri and Others, (1964) 6 SCR 654 : AIR 1964 SC : 1419 : (1964) 15 STC 468 ....
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....pumping charges which is contrary to facts of the transaction as supported by documents as well as the provisions of the Act. After rendering the above finding, the first Appellate Authority held that the tax levied in the assessment order on RMC pumping charges and freight charges is illegal and therefore, liable to be set aside. Unfortunately, the Tribunal did not even make an attempt to consider as to whether the finding rendered by the first Appellate Authority was correct or not. We disapprove the manner in which the Tribunal has decided the assessee's case." 15. He submits that the revenue has also not questioned the above decision before the Appellate Courts and therefore demand sustained by the 2nd respondent Appellate Joint Commissioner (CT) (FAC) in the impugned order dated 25.6.2012 as far as issue No.2 was unsustainable. 16. The learned counsel for the petitioner submitted that for the assessment years 1999-2000 and 2000-01 demands were confirmed for non production of evidence for claiming composition under Section 7C of the Tamil Nadu General Sales Tax Act, 1959. The claim for paying tax under the composition scheme under Section 7C of the Tamil Nadu General ....
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....the impugned order dated 25.6.2012 passed by the 2nd respondent Joint Commissioner of Commercial Taxes (CT) (FAC) is to be sustained and does not call for any interference under Article 226 of the Constitution of India. 25. Now coming to 1st issue, it will be useful to refer to the reasoning given by the 2nd Respondent Joint Commissioner of Commercial Taxes (CT) (FAC) in order dated 25.6.2012. Same is reproduced below:- 15. The claim of the department on the issue is found to be factually and legally sustainable. The appellant did not engage and entertain themselves in the execution of any civil works contract'. They had, as records indicate, only supplied ready mix concrete to various parties who had themselves been carrying out the work of civil constructions. Supplies of materials to such parties engaged in the civil works at the rates fixed at per square metre basis or cubic metre basis but where the final settlement for the supplies of Ready Mix Concrete was made on actual quantity of Ready Mix Concrete used at site basis, at the rate pre-determined per cubic metre of Ready Mix Concrete, can TNGST Act and the appellants' claim for sales under Section 3(2) o....
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....ordered to be upheld. 18. The issue under this item of dispute is thus decided in favour of the department and the assessees' agitation on this item of turnover thus fails. 26. It will be also useful to refer the few passages from the order of the 1st respondent Deputy Commissioner of Commercial Taxes (CT)-2 LTU in his order dated 30.8. 2011. Same is extracted below:- "It is strange to know that the dealer have chosen Section 3B for payment of tax in respect of all other portions of the buildings and civil structures and when it comes for deemed sale of RMC for the purpose of laying of concrete for roof and pillars they have chosen to pay tax at 2% under compounding. In fact the work of ready mix concrete laying would not come under civil works contact at all, it is only a supply contract, the dealers, as per the purchase order received, they have supplied Ready Mix Concrete to the buyers premises through the specially designed lorry called Transit Mixers, in order to deliver the concrete from Transit Mixers (lorry) to the roof top, they use Pumping compressor for delivery at the desired spots of building area . Whether a contract is a contract for....
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....of facts which to be ultimately distilled and discerned only by the Tribunal as the Tribunal is ultimate fact-finding authority. Therefore, it cannot be straight away assumed that the respondent have passed the respective orders in violation of the decision of the Hon'ble Supreme Court in Union of India versus Kamalashi Finance case refer to supra. 29. Since the question as to whether the transaction involved sale or "works contract" liable to tax under Section 3B or under Section 7C of the Tamil Nadu General Sales Tax Act, 1959 is a question of fact. It is to be determined only by the Authority in the hierarchy provided under the provisions of the aforesaid Act. 30. Therefore, no conclusion on facts can be arrived under Article 226 of the Constitution of India based on sample copies of invoices filed by the petitioner before this Court to convince the court to conclude that there was indeed "works contract" during the supply of ready mix concrete to its customers. 31. Therefore, issues left open to the petitioner to be agitated by the petitioner before the Appellate Tribunal and to convince the Appellate Tribunal on this accept and the applicability of the decision....