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1996 DIGILAW 382 (ALL)

PUROLATOR INDIA LTD v. STATE OF U P

1996-04-02

M.C.AGARWAL, OM PRAKASH

body1996
OM PRAKASH, J. The only question for consideration in the writ petition filed by the petitioner - a public limited company - is whether the petitioner is entitled to take benefit of the composition scheme (annexure "1" to the writ petition) in respect of its two works contracts (annexures "1" and "2" to the supplementary-affidavit ). 2. Section 3-F of the U. P. Trade Tax Act (briefly, "the Act") starting with a non obstante clause, inter alia, states that the turnover relating to the transfer of the property in goods involved in the execution of a words contract shall be determined in the manner prescribed and shall be liable to tax at such rate not exceeding fifteen per cent, as the State Government may by notification declare. In exercise of the power under section 3-F, the State Government by notification published on April 27, 1987, described as many as fifteen types of works contract, in the schedule. It is not necessary to reproduce all the works contract enumerated in the Schedule but reproduction of works contract as described at serial Nos. (1) and (6) will suffice. They are as follows : " Sl. No. (1) Fabrication and installation of plant and machinery. Sl. No. (2) to (5 ). . . . . . . . . . . . . Sl. No. (6) Civil works like construction of buildings, bridges, roads, dams, barrages and seaways, spillways and diversions. " 3. Section 7-D of the Act which too starts with a non obstante clause states that the assessing authority subject to the directions of the State Government may agree to accept a composition money either in lump sum or at an agreed rate of his turnover in lieu of tax that may be payable by a dealer in respect of such goods or class of goods and for such period as may be agreed upon. In exercise of the power under section 7-D the State Government announced a composition scheme (annexure "1" to the writ petition) in respect in respect of indivisible civil contracts. 4. The petitioner entered into a contract with Diesel Locomotive Works (DLW), Varanasi, for designing, constructing, supplying and installation on turnkey basis of two separately located waste water treatment unit for its DLW complex at Varanasi. 4. The petitioner entered into a contract with Diesel Locomotive Works (DLW), Varanasi, for designing, constructing, supplying and installation on turnkey basis of two separately located waste water treatment unit for its DLW complex at Varanasi. In para 3 of the writ petition, it is averred that the petitioner entered into another contract with U. P. Jal Nigam for Ganga Pollution Prevention Project, Banaras Hindu University, Varanasi, for construction of new sewage treatment plant in order to prevent the raw sewage being discharged in Ganga. It is contended that both the contracts involve civil works within the meaning of serial No. 6 of the notification dated April 27, 1987 and that they being indivisible in character, the petitioner is entitled to the benefit of composition scheme (annexure "l" to the writ petition ). 5. The petitioner made an application to take benefit of composition scheme for the assessment years 1987-88, 1988-89, 1989-90 and 1990-91 which was rejected by impugned order dated February 8, 1993 (annexure "5" to the writ petition) by the Deputy Commissioner on the ground that both the contracts of the petitioner do not fall in the category of civil works as envisaged by the composition scheme. Aggrieved, the petitioner filed a Writ Petition No. 568 of 1993 in this Court for quashing the said order which was rejected by this Court by order dated November l, 1993 (annexure "8" to the writ petition) with the observations that the petitioner may file a review application within a period of three weeks which shall be disposed of by the Deputy Commissioner in accordance with law. This is how the petitioner made a review application before the Deputy Commissioner which too was rejected by the impugned order dated February 11, 1994 (annexure "10" to the writ petition) observing that the composition scheme is applicable only to the civil construction, contracts and, therefore, the same will apply only to the building construction contract. The Deputy Commissioner further held that the petitioner entered into the agreements only to install waste water treatment plant of which construction of drains, tanks etc. The Deputy Commissioner further held that the petitioner entered into the agreements only to install waste water treatment plant of which construction of drains, tanks etc. , is a part and, therefore, the same are not construction contracts but they simply relate to the installation of waste water treatment plant which works contract falls within the description of "fabrication and installation of plant and machinery" as described at serial No. 1 in the Schedule set out in the notification dated April 27, 1987. 6. So the question for consideration is whether the composition scheme applies only to the building construction contract. Clause (1) (a) of the composition scheme clearly states that the civil contracts mean the civil works like construction of buildings, shades, bridges, roads, dams, barrages, drainage, sewerage, etc. From clause (1) (a), it is manifest that the civil contracts are of wide amplitude and they are not restricted only to the building construction contracts. The words "dams", "barrages", etc. , occurring in clause (1) (a) of the composition scheme hold a clue that the civil contracts involving installation of huge machinery and electrical equipment also fall in the category of civil contracts. It is, therefore, wholly incorrect to say that civil contracts as envisaged by the composition scheme refer only to the building construction contracts. 7. From the composition scheme, it is manifest that is does not refer to the civil contracts simpliciter but it refers to indivisible civil contracts. The petitioner entered into agreements as stated above for the installation of waste water treatment plant and for construction of sewage treatment plant involving enormous constructions of civil nature. From Schedule (C) of the agreement (annexure "l" to the supplementary-affidavit), it is manifest that the petitioner undertook to carry out the earth work, R. C. C. work, brick work, lime concrete terracing on roof, R. C. C. lintel beams, roofs, sun shades, etc. Again from Schedule (D) appended to the said contract, it appears that the petitioner agreed to construct foundation, roof slabs, walls, lintels, beams, sun shades, columns by R. C. C. work. Similar is the position of the other contract (annexure "2" to the supplementary/affidavit ). From this, it can be well concluded that the petitioner agreed to carry out extensive civil works under both the contracts besides the installation of the waste water treatment plant and other machinery. 8. Similar is the position of the other contract (annexure "2" to the supplementary/affidavit ). From this, it can be well concluded that the petitioner agreed to carry out extensive civil works under both the contracts besides the installation of the waste water treatment plant and other machinery. 8. The contention of the respondents is that the agreements of the petitioner are not the agreements for carrying out the civil works as described at Serial No. 6 in the Schedule set out in the notification to which the composition scheme is made applicable, but the works contract undertaken by the petitioner fall under the description of the works contract as described at serial No. 1 of the Schedule. No doubt the contracts entered into between the petitioner on the one hand and the DLW, Varanasi, and the U. P. Jal Nigam on the other hand are for installation of waste water treatment plant and new sewage treatment plant but to complete these projects civil works like construction of drainage, tanks, etc. , involving considerable amount are necessary. This is why the contracts undertaken by the petitioner are indivisible in nature. To executive the contracts, mere installation of machinery is not enough but to make the plant operative, completion of civil works of enormous size is necessary. The civil works undertaken by the petitioner and the installation of the machinery are integral part of the contracts, which the petitioner executed. The installation of the machinery and completion of the civil works relating thereto are so inextricably mixed up that the project can never be said to have been completed without completing both the works together. 9. Such contracts being of complex nature, it is difficult for the respondent department to find out as to how much property in the goods was transferred and this is why the department though it expedient to devise the composition scheme so that tax may be recovered in lump sum or at an agreed rate without going into the minute details of transfer of property in goods for making assessment. With a view to simplifying an assessment, the State Government devised the composition scheme to recover a composition money in lump sum or at an agreed rate. With a view to simplifying an assessment, the State Government devised the composition scheme to recover a composition money in lump sum or at an agreed rate. Simply because the petitioner installed the waste water treatment plant and the sewage treatment plant, it cannot be said that the contracts of the petitioner fall within the description of the works contract, as stated at serial No. 1 of the Schedule in the notification dated April 27, 1987. Since completion of these plants require enormous civil works involving substantial amount, the only conclusion that can be reached at is that the contracts undertaken by the petitioner, are indivisible. 10. The narrower view taken by respondent No. 2 that civil contracts as envisaged by the composition scheme refer only to building construction contracts, cannot be countenanced. A building contract can also be an indivisible contract. For example an integrated contract to complete a building with electrical and sanitary fitting will be an indivisible civil contract. Similarly a contract for installation of a plant which can be completed only by carrying out extensive civil works involving substantial amount will be indivisible civil contract. Respondent No. 2 failed to understand the ambit of the works set out in clause (1) (a) of the composition scheme and of the civil works described at serial No. 6 of the Schedule in the notification of April 27, 1987. Civil contracts cannot be confined only to the building construction contracts but they take within their sweep all the construction of civil nature, exhaustive description of which is not possible and, therefore, the word "like" has been used as a suffix to the words "civil works" at serial No. 6 of the Schedule in the notification dated April 27, 1987. 11. For the reasons, we are of the view that the petitioner is entitled to take benefit of the composition scheme in respect of its both the indivisible civil contracts. 12. The petition, therefore, succeeds and is allowed. 11. For the reasons, we are of the view that the petitioner is entitled to take benefit of the composition scheme in respect of its both the indivisible civil contracts. 12. The petition, therefore, succeeds and is allowed. Impugned orders dated February 8, 1993 and February 11, 1994 (annexures "5" and "10" respectively to the writ petition) passed by respondent No. 2 are quashed and respondent No. 2 is directed to decide the application of the petitioner seeking benefit of the composition scheme (annexure "1" to the writ petition) for the assessment years 1987-88, 1988-89, 1989-90 and 1990-91 in accordance with law within six weeks from the date a certified copy of this order is produced before the said respondent by the petitioner, until given on the application as aforesaid. The stay order dated April 7, 1984 will continue. Petition allowed. .