ENGINEERS ENTERPRISES v. DEPUTY COMMISSIONER EXECUTIVE SALES TAX
1996-07-17
A.P.MISRA, S.N.TIWARI
body1996
DigiLaw.ai
S. N. TIWARI, J. Rejoinder affidavit filed today. 2. Heard learned counsel for the petitioner. In view of the exchange of affidavits and in accordance with the Rules of court we dispose of this petition finally at the admission stage. 3. The petitioner seeks quashing of order dated March 29, 1993 (annexure 6 to the writ petition) passed by respondent No. 1 rejecting the petitioners claim for exemption on washable apron constructed by the petitioner, hence claiming exemption under the composition scheme. 4. The dispute relates to the assessment years 1987-88 and 1988-89. The case of the petitioner is that in the relevant assessment years in question the petitioner has executed various contracts of civil nature including the contract awarded by the Railways for the construction of washable apron and its heavy repairs. For the construction of washable apron, according to the petitioner, it has to prepare a cement concrete floor in between two railway lines at the railway platforms, which is also clear from the specification of the work. Since it is nothing but a construction of a cement concrete floor for removing the night soil and others refuse, hence the work is of civil nature and constitutes to be a civil contract. 5. The State Government imposed a composition scheme under section 7-D of the U. P. Trade Tax Act, 1948, which is annexed as annexure 4 to the writ petition. Under this scheme the petitioner applied and the respondents accepted the said application in respect to the other work but did not accept it relating to the construction of washable apron, hence the claim of the petitioner was rejected to that extent. The contention is that the concerned respondent-authority did not apply its mind in constructing the contract and hence committed illegality in rejecting the same. The Commissioners circular dated May 21, 1992 is annexed as annexure 8 to the writ petition. The said circular records that only those works which are specifically mentioned in the composition scheme qualify for composition and to be constitute to be a civil contract. In other words it is exhaustive and not illustrative. Learned Standing Counsel contended that no illegality has been committed by the respondent-authorities as construction of washable apron does not fall under the scheme and hence, has been rightly rejected. The reference to the Commissioners circular, as aforesaid, is also relied in the counter-affidavit. 6.
In other words it is exhaustive and not illustrative. Learned Standing Counsel contended that no illegality has been committed by the respondent-authorities as construction of washable apron does not fall under the scheme and hence, has been rightly rejected. The reference to the Commissioners circular, as aforesaid, is also relied in the counter-affidavit. 6. After hearing the learned counsel for the parties we find that the notification dated April 27, 1987, issued under section 3-F of the U. P. Sales Tax Act, 1948 under the Schedule at Sl. No. 6 reads as follows : " 6. Civil works like construction of buildings, bridges, roads, dams, barrages and seaways, spillways and diversions. " 7. Scheme under section 7-D referring to the civil work also is on the same pattern and on the same line as under the said notification. The description of civil work is preceded by the word "like". Similarly under the said scheme civil work is described by stating "jaise" which also means like. By bare reading of both the said notification and also the said annexure 4. , there cannot be any doubt that the works mentioned therein are not only work covered under the said notification or under the said scheme as they are merely illustrative in nature and not exhaustive. It is for the authorities, on the facts and circumstances of each case, to consider and draw inference whether any work for which the petitioner claims exemption under the scheme could constitute to be one to cover like civil contract as referred to therein. There is difference between the like and the same. The word "like" used clearly denoted not same but something similar to that which can be extended to such other work which may qualify to be of the similar nature. 8. In the present case we further find that the petitioner has given the details of the work in the petition before the authorities, i. e. , for the construction of washable apron which is prepared by preparing a cement concrete flooring in between two railway lines at the railway platforms. Even the work and the plan for preparing the same is also annexed. After perusing the same we find that the respondent-concerned authority fell into error by refusing to cover such contract to be one not of civil nature probably by giving a restricted meaning to the words "civil work". 9.
Even the work and the plan for preparing the same is also annexed. After perusing the same we find that the respondent-concerned authority fell into error by refusing to cover such contract to be one not of civil nature probably by giving a restricted meaning to the words "civil work". 9. We come to the irresistible conclusion on the facts and circumstances of the case, that the work of the present nature, namely, construction of "washable apron" would be covered within the said scheme to be a contract of civil nature. Hence we hold the impugned order dated March 29, 1993 (annexure 6 to the writ petition) passed by respondent No. 1, so far as it rejects the petitioners claim on the construction of washable apron, is hereby set aside. We hold that the said work is covered under the composition scheme under section 7-D of the Act. 10. Accordingly in the light of the observations made above we direct that the assessing authority, namely respondent No. 2, shall take necessary action within a period of three weeks from the date a certified copy of this order is filed before the said authority. The petitioner will file a certified copy of this order within two weeks from today. 11. In case the petitioner files the certified copy of the said order within the said period, the assessment proceedings against the petitioner for the assessment years 1987-88 and 1988-89 shall not proceed. 12. With the aforesaid observations the present writ petition is allowed. 13. A certified copy of this order may be given to the learned counsel for the petitioner on payment of usual charges within one week. Write petition allowed. .