Allahabad High Court
M/S Bharat Udyog Company vs Commissioner Commercial Tax U.P. ... on 18 May, 2022
Bench: Piyush Agrawal
HIGH COURT OF JUDICATURE AT ALLAHABAD
Judgment reserved on 28.04.2022
Judgment delivered on 18.5.2022
Court No. - 79
Case :- SALES/TRADE TAX REVISION No. - 76 of 2017
Revisionist :- M/S Bharat Udyog Company
Opposite Party :- Commissioner Commercial Tax U.P. Lucknow
Counsel for Revisionist :- Naveen Chandra Gupta
Counsel for Opposite Party :- C.S.C.
With
Case :- SALES/TRADE TAX REVISION No. - 77 of 2017
Revisionist :- M/S Bharat Udyog Company
Opposite Party :- Commissioner Commercial Tax U.P. Lucknow
Counsel for Revisionist :- Naveen Chandra Gupta
Counsel for Opposite Party :- C.S.C.
Hon'ble Piyush Agrawal,J.
1. Heard Mr. N.C. Gupta, learned counsel for the revisionist, Mr. Ravi Shanker Pandey, learned Standing Counsel for the respondents.
2. The above mentioned revisions are listed together as the issue involved in both the revisions are interconnected, hence the same are being heard and decided by this common judgment.
3. Both the aforesaid revisions have been filed against the order dated 11.11.2006 passed by Commercial Tax Tribunal, Noida Bench-1 in Second Appeal Nos. 571 and 572 of 2015 for Assessment Year 2008-09 under the U.P. VAT Act as well as under the Central Sales Tax Act in which following common questions of law have been framed:-
"1. Whether, the Commercial Tax Tribunal as well as authority below were justified to hold the spare parts of the Cooling Machine/Cooling Tower as a unclasified item nd liability of tax @ 12.5.% despite the fact that the applicant revisionist is engaged in manufacturing and sale of spare parts of the Cooling Machine.
2. Whether, the item manufactured and sale by the applicant revisionist is spare parts of a machine and have liability of only 4% as per Schedule II Part-A of Section 4 of the U.P. VAT Act."
4. Counsel for the revisionist submits that the revisionist is engaged in manufacturing of Cooling Tower/Cooling Machine which are machinery, covered under the head of machinery liable to tax @ 4% as per Schedule II Part-A of Section 4 of the U.P. VAT Act. He further submits that spare parts of the said machinery are also covered under the said entry but the authorities were not correct in holding the same as unclassified items liable to be taxed at a higher rate. He further submits that w.e.f. 29.9.2008, the entry of 26 has been deleted and rate of tax thereafter is imposed at a higher rate. The only dispute is for the period 1.4.2008 to 29.9.2008. He further submits that the spare parts purchased during the aforesaid period should be covered as spare parts of the Cooling Tower/Cooling Machine and was liable for tax at a lower rate. He prays for allowing the revision.
5. Per contra, learned Standing Counsel opposed the prayer of learned counsel for the revisionist and supports the orders passed by the authorities below. He submits that the revisionist is not correct in stating that they manufactured Cooling Tower/Cooling Machine which forms part of a machinery whereas the revisionist had undertaken fabrication work which by no stretch of imagination can be treated to be as machinery for which spare parts were liable to be taxed @ 4%. He prays for dismissal of the revision.
6. After hearing learned counsel for the parties, the Court has perused the record.
7. It is the case of the revisionists that they are manufacturing Cooling Tower which are machinery and, therefore, for manufacturing of the same, spare parts and components are required which are also covered under the aforesaid entry. On perusal of the record, it reveals that the Assessing Authority while passing assessment order dated 25.2.2012 has specifically recorded as under:-
" वास्तव में व्यापार के द्वारा एगिल, सर्वस्री भारत उद्योग कम्पनी जी-2 साईट-5 सूरजपुर इन्ड० एरिया कासना ग्रे०नो० 08-09 एरिया, शीट का फैबरीकेशन का कार्य किया गया है। इस प्रकार उनके द्वारा न तो किसी मशीनरी का कार्य किया गया है और न ही उससे सम्बन्धित किसी पार्ट का । व्यापारी द्वारा स्वयं भी आगे 12.5 प्रतिशत की दर से ही कर जमा किया है ।
अतः व्यापारी के कथन को मान्यता नहीं दी जा सकती ।"
8. A perusal of the said observation of the Assessing Authority clearly shows that the revisionist only undertaking the work of fabrication. The said finding of the Assessing Authority had not been challenged either up to the Tribunal or before this Court. Once the finding of the Assessing Authority was not challenged with regard to the work undertaken as fabrication, in other words, the work undertaken by the revisionist was of fabrication then there is no question of any machine or machinery being manufactured by the revisionist, to be covered under the aforesaid entry.
9. Once, the main function of the revisionist is doubted, there is no question for grant of any benefit so far with regard to purchase of spare parts, therefore, no case is made out for interference by this Court.
10. Both the revisions fail and accordingly, dismissed.
11. The questions of law are answered accordingly.
Order Date :- 18.5.2022
Shiraz
