9911796707
TMI Blog2007 (3) TMI 733X X X X Extracts X X X X X X X X Extracts X X X X ..... the orders passed by the respondent No. 3 in preceding bearing No. JCCT-(Int) DCCT/Int-II/INS.15/04-05 dated 31-1-2006 vide Annexures- m and N to the writ petition on the ground of availability of alternative remedy. 4. Briefly stated the factual background is as follows: M/s. Delhi Metro Rail Corporation Ltd., (DMRC) floated global tenders for the design and construction of Mass Transport System by procuring the design, execution and completion, remedying and defects in the design, manufacture, supply and commissioning of Passenger Rolling Stock including training of operation and maintenance personnel, supervision of maintenance of Rolling Stock supply of unit exchange spares, consumable spares and operation and maintenance manuals. Since the nature of the tender specification was such that no once single company would have participated in the tender, the appellant herein and two other companies, namely, Rotem Company, Korea and Mitsubishi Electric Corporation, Japan, formed themselves into a Consortium under an agreement dated 18-5-2001. Thereafter the Consortium was successful and contract was awarded to it by the DMRC. All the members of the Consortium, viz, Mitsubh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... date was issued for the Assessment year 2004-05 fixing the liability at ₹ 6,97,91,522-00 with Form-C and ₹ 26,82,51,172-00 without Form-C. The Appellant has replied the said notice. However, the assessing authority has passed two orders for payment of ₹ 6,52,11,456-00 for the year 2003-04 and ₹ 24,57,97,025-00 for the year 2004-05. Aggrieved by that the appellant herein has challenged said orders in W.P. No. 3303/2006. The learned single Judge by his order dated 27/03/2006 has dismissed the said writ petition on the ground of availability of alternative remedy. Aggrieved by that the appellant herein has filed this appeal. 5. We have heard the learned Sr. Counsel Mr. K.G. Raghavan for the Appellant and the learned Sr. Counsel Mr. R.N. Narshimha Murthy for the respondents 1 to 3. There is no representation on behalf of the respondents 4 and 5 though served. 6. The Learned Sr. Counsel for the appellant contended that the movement of goods from Bangalore to Delhi is incidental and not incident of sale that has taken place at Delhi between Consortium and DMRC and therefore the orders passed by the 3 rd respondent are illegal and without the authority o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to fulfil the obligation of the Consortium at Delhi and therefore the contract entered into between Rotem and BML is inseparable and it is part of the contract entered into between DMRC and the Consortium. He also contended that the two contracts are not independent but they are dependent and therefore the movement of goods is on account of the contract entered into between DMRC and Consortium and therefore the Government of Karnataka is the only authority to levy and collect tax from the appellant and the appellant is bound to pay the tax to the State of Karnataka. The learned Sr. Counsel therefore submitted that the impugned order does not call for interference. He therefore submitted the appeal is liable to be dismissed. In support of his submission, he placed reliance on the following decisions of the Apex Court:- (2000) 6 SCC 12 (1976) 2 SCC 44 (1985) 4 SCC 173 (1976) 4 SCC 460 9. We have carefully considered the submissions made by the learned counsel for the parties. Before adverting to the facts of the present case, we consider it proper to refer to the decision cited by the learned Sr. Counsel for the parties and the law laid down by the Apex Court:- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... property in the goods passes; (2) it is not necessary that the sale must precede the inter-State may be deemed to have occasioned such movement; and (3) it is also not necessary for a sale to be deemed to have taken place in the course of inter-State trade or commence, that the convent regarding inter-State movement must be specified in the contract itself. It would be enough if the movement was in pursuance of and incidental to the contract of sale 6. In BHARAT HEVY ELECTRICAL LTD. Ors. Vs. UNION OF INDIA Ors. Reported in (1996) 4 SCC 230, Hon ble Supreme Court has held:- . the dispatch of the components/parts by the Hyderabad unit to the work site in Orissa, held, constituted inter-State sale and not branch transfer in such a case the tax collected in the State of T.N. in respect of such components/parts, refundable to the assessee or transferable to the State wherein it was leviable . 7. In STATE OF KARNATAKA Vs. JINDAL ALUMINIUM LIMITED reported in 2002 STC Vol.126 this Court has held as follows:- the provision of section 3 of the Central sales Tax, 1956 contemplated the movement of goods in pursuance of contract of s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s only for the purpose of enabling the sale by the branch office and was not in the course of fulfilment of the contract of sale. We are unable to agree. Even if, as in the present case, the buyer places an order with the branch office and the branch office communicates the terms and specifications of the orders to the registered office and the branch office itself is concerned with the sales dispatching, billing and receiving of the sale price, the conclusion must be that the order placed by the buyer is an order placed with the Company, and for the purpose of fulfilling that order of the manufactured goods commence their journey from the registered office within the State of Andhra Pradesh to the branch office outside the State or delivery of the goods to the buyer. We must not forget that both the registered office and the branch office are offices of the same Company, and what in effect does take place is that the Company from its registered office in Hyderabad takes the goods to its branch office outside the State and arranges to deliver them to the buyer. The registered office and the branch office do not possess separate juridical personalities. The question really is wheth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion, and remedying any defects in the works of the manufacture, testing and supply of Passenger Rolling Stock including maintenance, personnel, supervision of maintenance of Rolling Stock and agreed to undertake the works under the terms and conditions set forth in the main contract. It is to fulfill the said obligation the sub-contract has been entered into between the Rotem and BEML. It is also provided in clause 11 of the sub-contract shall come into force after Rotem receives the unconditional concurrence to the sub-contract from the DMRC. In view of this, it is clear, it is only to fulfil the obligation under the main contract, the sub-contract has been entered into between Rotem and BEML. In view of this, it cannot be said, the contract entered in to between Rotem and BEML is independent of the contract entered into between the consortium and DMRC. In fact these two contracts are inseparable. Therefore, the movement of goods from Bangalore to Delhi is to fulfil the obligation under the main Contract entered into between consortium and DMRC at Delhi and therefore it is an inter-state sale. In view of this, it squarely falls within the provision of Sec.3(a) of Central Sales Tax ..... X X X X Extracts X X X X X X X X Extracts X X X X
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