9911796707
TMI Blog1999 (1) TMI 501X X X X Extracts X X X X X X X X Extracts X X X X ..... r in respect of works contract and section 9 deals with registration of dealers . Rules 6 and 7 of the Orissa Sales Tax Rules, 1947 (in short, the Rules ) deal with application for registration and grant of registration certificate respectively. Certificate of registration is granted in form III. In the Central Act section 2(g) defines sale , section 7 deals with registration of dealers and section 8 deals with rate of tax on sales in the course of inter-State trade or commerce. Under the Act turnover of works contract is distinct from ordinary turnovers. 2.. In each case, petitioner s prayer for insertion of certain goods in the certificates of registration issued under the Act and the Central Act in order to enable it to purchase goods free of tax/concessional rate has been turned down by the sales tax authorities. Consequentially prayer for issuance of requisite declaration forms in order to avail such benefit has been turned down. According to the petitioners, the actions are indefensible inasmuch as being registered dealers they are entitled to such benefits. Brief reference to factual position in O.J.C. Nos. 2792 and 2793 of 1998 needs to be briefly stated. Controversy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ods or any other definition of sale occurring in taxing statutes, unless the respective Legislatures amend the respective laws so as to bring in conformity with the scope of the Central Act vis a vis clause (29-A) of article 366 of the Constitution. Thus the concept of deemed sales can be operative in any statute, only if it is so envisaged and necessary amendment is effected. Without amendment, all grammatical variations of the expression sale continue as before. 4.. By way of reply, learned counsel for the petitioners submitted that in view of the decisions of the apex Court in Builders Association of India v. Union of India [1989] 73 STC 370, and Cannon Dunkerley Co. v. State of Rajasthan [1993] 88 STC 204, absence of any amendment in the Central Act is of consequence so far as taxability of works contract is concerned. 5.. The division Bench while dealing with the case in Enertect Engineering Private Limited [1998] 110 STC 442 (Orissa) came to the conclusion that the decision of the apex Court in Cooch Behar Contractors' Association v. State West Bengal [1996] 103 STC 477 squarely applied and rejected prayers similar to those contained in these writ applications. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enefits of use of declaration forms under the said Act, has been specifically denied as per section 5(2)(a)(ii) which is quoted below: (ii) sales to a registered dealer of goods, other than rice and wheat, referred to in section 14 of the Central Sales Tax Act, 1956 (74 of 1956), specified in the certificate of registration of such dealer as being intended for resale, other than that by way of sale referred to in sub-clause (ii) of clause (g) of section 2 or in 6D, by him in West Bengal, and of containers and other materials for the packing of such specified goods: Provided that deduction on account of sales referred to in sub-clause (ii) shall be allowed to the dealer who sells the goods only when he can furnish in the prescribed manner a declaration Section 5(2)(A)(ii): Sales to a registered dealer of goods specified in the purchasing dealer's certificate of registration for resale by him in Orissa in a manner that such resale shall be subject to levy of tax under this Act; and on sale to a registered dealer of containers or other materials for the packing of such goods; Provided that for the purpose of ascertaining the deductions under this item the dealer selling the go ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt in Orissa Sales Tax Act. Inconsistently studying with the problems of the works contractor as discussed threadbare in Gannon Dunkerley s case reported in [1993] 88 STC 204 (SC) as well as Cooch Behar Contractors Association v. State of West Bengal [1996] 103 STC 477 (SC) and [1989] 73 STC 370 (SC) (Builders Association of India v. Union of India) it appears that all the problems have been answered in the instant cases. We find that the revisional authority in the impugned order (annexure-5) has rightly rejected the contention of the petitioner and we do not find any better merit in the contention of the petitioner to interfere with the same. The writ petition thus stands dismissed. There would be no order as to costs. No detailed analysis of various provisions of concerned statutes has been made. The division Bench lost sight of the fact that under the Bengal Finance (Sales Tax) Act, section 6D starts with non obstante clause that notwithstanding anything contained elsewhere in the Act a person is to be held to be a dealer for effecting sale under section 6D. Further in respect of the liability under the Bengal Finance (Sales Tax) Act a contractor shall not be held to be lia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tration to that extent and, therefore, the Sales Tax Officer must record reasons in writing for such refusal and that too he could refuse only after giving an opportunity of hearing to the applicant. This being the position of law, and admittedly the petitioner having made an application on August 1, 1985, by giving a list of goods in respect of which the certificate of registration is applied for and the Sales Tax Officer having granted a certificate of registration on August 5, 1985, but merely inserting therein execution of works contract as against column 3 of the certificate of registration, it must be held that it was beyond the jurisdiction of the said officer to do so and that also is bad for non-compliance with the provisions of the Act and the Rules as neither he has recorded any reasons in writing nor has he given an opportunity of hearing to the applicant. ........In that view of the matter, the Sales Tax Officer had no jurisdiction while granting a certificate of registration under the Central Sales Tax Act to insert in column meant for classes of goods only execution of works contract in place of the list of goods supplied by the dealer. In Larson Toubro Limi ..... 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