2011 (8) TMI 995 - HC - VAT and Sales Tax

Whether the total value of the goods used in the execution of the works contract entered into between assessee, Delhi Development Authority or with National Building Construction Corporation could be treated to be a divisible part of the works contract so as to be subjected to levy of Central sales tax in view of the amendment introduced by addition of sub-clause (b) to clause (29A) of article 366 of the Constitution of India? Held that - The contract entered into between the assessee and the Delhi Development Authority and the other contract between the assessee and National Building Construction Corporation stand divided into two parts because of the Constitutional Amendment in the definition of sale under article 366(29A)(b).It is clear that the paragraphs 41 to 44 deal with the constitutionality of the State law framed under entry 54 of the State List for imposing tax on deemed sale as per definition under article 366(29A)(b). Appeal dismissed.

Issues Involved:
1. Division of works contract for tax purposes.
2. Applicability of Central Sales Tax on works contracts executed outside the State.
3. Legislative competence of the State to levy tax on deemed sales.
4. Impact of the amendment in Article 366(29A)(b) of the Constitution of India.
5. Relevance of previous judgments and legal precedents.

Issue-wise Detailed Analysis:

1. Division of Works Contract for Tax Purposes:
The primary issue was whether the works contract entered into by the assessee with the Delhi Development Authority and National Building Construction Corporation could be divided into two parts-one for the supply of goods and the other for installation expenses. The Tribunal upheld this division based on the amendment under Article 366(29A)(b) of the Constitution, which deems a single works contract as divisible into a sale of goods and supply of labor and services. This division was supported by the Supreme Court's judgment in Gannon Dunkerley & Co. v. State of Rajasthan, which established that the legal fiction introduced by Article 366(29A)(b) results in an automatic division of the contract.

2. Applicability of Central Sales Tax on Works Contracts Executed Outside the State:
The assessee contested the imposition of Central Sales Tax on the value of goods used in the execution of works contracts executed outside the State. The Tribunal, relying on the Supreme Court's decision in Gannon Dunkerley & Co., held that the amendment to Article 366(29A)(b) allows for such taxation. The court clarified that the amendment itself is sufficient to tax the goods used in the works contract, regardless of the location of execution.

3. Legislative Competence of the State to Levy Tax on Deemed Sales:
The assessee argued that the State lacked the competence to levy tax on deemed sales, especially when the contract was executed outside the State. The Tribunal and the court dismissed this argument, citing the Supreme Court's clarification that the legislative power of the State under Entry 54 of the State List is valid and that such deemed sales are taxable under the Central Sales Tax Act, even without an explicit amendment to the Act.

4. Impact of the Amendment in Article 366(29A)(b) of the Constitution of India:
The amendment to Article 366(29A)(b) was central to the judgment. The court reiterated that this amendment creates a legal fiction that divides a single, indivisible works contract into two parts, making the sale of goods within such contracts taxable. The court emphasized that this division is automatic and does not require further legislative changes to the Central Sales Tax Act to be effective.

5. Relevance of Previous Judgments and Legal Precedents:
The court examined several previous judgments cited by the assessee, including Jindal Irrigation Limited v. Commissioner of Trade Tax, U.P., Lucknow, Thomson Press (India) Ltd. v. State of Haryana, Sundaram Industries Limited v. Commercial Tax Officer, 20th Century Finance Corpn. Ltd. v. State of Maharashtra, and Tata Elxsi Limited v. State of Uttaranchal. The court found that these judgments either did not consider the relevant paragraphs of the Gannon Dunkerley & Co. decision or were not applicable to the present case. The court upheld the Tribunal's reliance on the Gannon Dunkerley & Co. decision, which provided a comprehensive interpretation of the constitutional amendment and its implications for taxability.

Conclusion:
The court dismissed the trade tax revision, upholding the Tribunal's decision to tax the material value of goods used in the works contracts executed outside the State. The judgment reinforced the legal fiction created by the constitutional amendment, which mandates the division of works contracts for tax purposes, and confirmed the State's legislative competence to levy such taxes under the Central Sales Tax Act.

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