JUDGMENT Ashwani Kumar Mishra, J. 1. This revision is by the assessee, challenging an order passed by the Tribunal, dated 15.4.2017. 2. It may be noticed at the very outset that the order of Tribunal has been passed pursuant to a direction issued by this Court on 22.2.2017, in Revision No. 70 of 2017 (M/s S.K. Jain Contractor, Lalitpur v. Commissioner of Trade/Commercial Tax, U.P. Lucknow), which is reproduced hereinafter “1. The revisionist, herein, is a works contractor, who is aggrieved by the order of the authorities under the Act, as affirmed by the order of the Tribunal, in so far as the payment made towards the labour charges have been disallowed deduction and only 30% deduction for the purpose has been permitted. The matter pertains to the assessment year 2010-2011. Reliance is placed upon Rule-9 of The Uttar Pradesh Value Added Tax Rules, 2008. 2. Sri Krishna Agrawal, learned counsel appearing for the assessee has invited attention of the Court to Rule-9 of the VAT Rules. Rule-9(1)(d) and 9(3) are relevant and thus reproduced: - “Rule 9. Determination of turnover of sale of goods involved in the execution of a works contract -- (1) Subject to other provisions of these rules, the tax on turnover of sale of goods where such sale is affected by way of transfer of property in goods (whether as goods or in some other form) involved in the execution of a work contract shall be computed on the taxable turnover of sale of taxable goods. For the purposes of determining the taxable turnover of sale of such goods, the amounts specified below shall be deducted if included in the gross amount received or receivable in respect of the works contract: - (d) all amounts representing the value of service and labour and profit thereon; (3) Where accounts maintained by the contractor do not show separately the value of labour and services and amount of profit accrued on such labour and services, or accounts maintained by the dealer are not worthy of credence or if the dealer has not maintained accounts, for the purpose of determining turnover of goods in which transfer of property in goods has taken place, in cases other than those mentioned in the table below, an amount, representing twenty percent of gross amount received or receivable, shall be deducted towards labour and services and amount of profit accrued thereon and in the cases described or mentioned in column 2 of the table given below, amount of deduction towards such labour and services and amount of profit accrued thereon shall be computed at the rate percentages, given in column 3 against the entry in column 2 of the table, of the amount received or receivable”. 3. Learned Counsel, with reference to Rule-9(1)(d) contends that the amount representing the value of service and labour and profit is liable to be deducted if it is included in gross turnover while determining the taxable turnover of sale of such goods. It is contended that such benefit can be granted if it is shown separately, as has been done herein. Submission is that only in its absence or where necessary ingredients to attract sub Rule-(3) exists on record that benefit under rule 9(1)(d) can be denied. It is contended that there is no justification reflected in the orders of the authority, which may justify discrediting the figures disclosed in the Books of Account by the assessee so as to warrant having recourse to sub Rule (3) of Rule-9. 4. It is also contended on behalf of the assessee that it had not purchased stone (Khanda) and that addition to its turnover by Rs. 40,00,000/- was without any basis. It is stated that merely because such purchases were made in previous years would not be a ground to include such amount in the correct year as well. 5. 4. It is also contended on behalf of the assessee that it had not purchased stone (Khanda) and that addition to its turnover by Rs. 40,00,000/- was without any basis. It is stated that merely because such purchases were made in previous years would not be a ground to include such amount in the correct year as well. 5. Learned Standing Counsel, on the other hand, has invited attention of the Court to the assessment order and an attempt is sought to be made that appropriate accounts, in respect of the figures reflecting labour works were not maintained and furnished. 6. I have heard learned counsel for the parties and have perused the materials brought on record. 7. Rule-9 regulates determination of turnover in a works contract. It is clear that the amount representing the value of service and labour and profit thereon is liable to be deducted if it is included in the gross amount received in respect of works contract. The assessee herein is works contractor and has submitted his books of account in which he has admitted liability to pay tax amounting to Rs. 1,04,60,958/-. The assessing authority has observed that a show cause notice was issued to the assessee, stating that in respect of the earth work and labour work, details of payment have not been furnished. The assessee responded to the show cause notice by contending that separate work orders/bills have been issued and after appropriating the amount incurred towards the earth work and labour work, the books of account have been drawn, clearly segregating the amount payable in the relevant head. From the order passed by the assessing authority, this court finds that there is no finding returned in the order to discard the books of account of the assessee, holding that accounts maintained by the dealer are not worthy of credence or that the amount payable towards the labour has not been separately shown. The first appellate authority as well as the Tribunal have merely dittoed the opinion expressed by the assessing authority and 30% amount claimed as labour charges alone have been held admissible for deduction. 8. The first appellate authority as well as the Tribunal have merely dittoed the opinion expressed by the assessing authority and 30% amount claimed as labour charges alone have been held admissible for deduction. 8. From the reading of the Rule, it is apparent that 20% amount towards labour charges could be held admissible for deduction, by virtue of Rule-9(3) of the Rules, in a case where the amount payable towards labour charges are not separately shown or that the accounts maintained by the dealer are not worthy of credence. 20% deduction would be admissible upon the total value of the contract, if the account of the assessee are not accepted. However, the authorities would have to examine with reference to the materials placed as to whether the claim of the assessee falls within the purview of Rule-9(1)(d) or 9(3) of the Rules. Unless the matter is examined from that perspective, the authorities would not be justified in rejecting the figures representing the value of service and labour and profit in the books of account. 9. Since in the facts of the present case this Court finds that the required exercise warranted at the level of the authorities to deal with the liability of the assessee to pay VAT with reference to the provisions contained under Rule-9 of the Rules, have not been under taken, as such, the Tribunal was not justified in rejecting the claim of the assessee. 10. The question of law, formulated for consideration in this revision is answered by holding that in the absence of any discussion and finding based upon the materials placed, doubting the figures reflected in the books of account to show the value of service of labour, the authorities were not justified in denying the benefit admissible to the assessee under Rule-9(1)(d) of the Rules. The Tribunal in such circumstances, would examine the matter afresh, keeping in view the provisions of Rule-9 and in light of the observations made above. 11. The second question posed for consideration in this revision is also answered by holding that in the absence of any material existing on record showing purchase of stone (Khanda) of Rs. 40,00,000/-, the authorities would not be justified in including such amount in the turnover merely for the reason that such purchases were made in the previous years. The figures shown for the current year along are relevant for such purposes. 12. 40,00,000/-, the authorities would not be justified in including such amount in the turnover merely for the reason that such purchases were made in the previous years. The figures shown for the current year along are relevant for such purposes. 12. Revision, accordingly, stands disposed of.” 3. The assessee was awarded a contract for construction of a Dam at Lalitpur. Tribunal has returned a finding that the contract is a composite contract, and the plea of the assessee that separate works are to be performed has not been accepted by the Tribunal for the reason that contract is a consolidated works contract. The assessee has submitted running bills, according to which the amounts received have been appropriated in following manner (i) Earthwork for which no goods have been transferred - Rs. 18,14,22,400/-. (ii) Labour charge for work in which no goods are transferred - Rs. 12,20,75,477/-. (iii) Constructions cost in which transfer of goods has taken place - Rs. 28,83,65,107/-. 4. The department and the Tribunal has accepted claim of earthwork to the extent of Rs. 18,14,22,400/-, and such amount has been excluded from the works contract. The claim of assessee with regard to appropriating sum of Rs. 12,20,75,477/- only towards labour charge, however, has not been accepted by the department and the Tribunal, for the reason that a separate contract for labour work has not been brought on record. According to the department, after excluding the earthwork, the remaining part of contract constitutes the works contract, and since labour charges have not been separately appropriated in the books of account, as such, benefit of labour charges to the extent of 30% has been allowed relying upon the provisions of Rule 9(3) of The Uttar Pradesh Value Added Tax Rules, 2008. 5. Sri Krishna Agrawal, learned counsel appearing for the assessee, has vehemently argued that 30% towards labour charges was entitled to be appropriated from the works contract, quantum whereof was limited Rs. 28,83,65,107/-, and as per him, the component of labour charge amounting to Rs. 12,20,75,477/- ought to have been entirely excluded from the quantum of works contract, as no transfer of goods to that extent had taken place. According to the revisionist, 30% amount towards labour charges was liable to have been appropriated from the works contract valued at Rs. 28,83,65,107/-, and the entire labour charges separately quantified at Rs. 12,20,75,477/- ought to have been entirely excluded from the quantum of works contract, as no transfer of goods to that extent had taken place. According to the revisionist, 30% amount towards labour charges was liable to have been appropriated from the works contract valued at Rs. 28,83,65,107/-, and the entire labour charges separately quantified at Rs. 12,20,75,477/- was liable to have been omitted from the quantum of works contract. Sri Krishna Agrawal further submits that claim put forth by the assessee in that regard is clearly discernible from running bills, which have been brought on record by way of a supplementary affidavit. 6. Sri B.K. Pandey, learned Standing Counsel, on the other hand, submits that segregation of labour charges amounting to Rs. 12,20,75,477/- is not substantiated from the contract, inasmuch as after excluding the earthwork, the remainder constitutes the works contract and from it, a sum of 30% alone was liable to have been appropriated towards the labour charges, as has been rightly held. 7. I have heard learned counsel for the parties, and have perused the materials brought on record. 8. The finding returned in the order of Tribunal that there exists only one contract is not disputed. The claim of assessee with regard to earthwork undertaken has already been accepted by the department, and therefore, requires no consideration. From the remainder, the assessee has attempted to segregate a part entirely towards labour charges and the remaining as constituting the works contract. Although the running bills have been presented in that regard, but there is nothing on record to show that contract itself admitted of a separate part being attributed only towards labour work, and to exclude that entire amount altogether and to leave the remaining part alone as constituting the works contract. In absence of any material brought on record to show the basis for such further categorization of work into one constituting labour work, and the other constituting works contract, which also included labour component, the authorities cannot be said to have acted in an unjustified manner in discarding the assessee’s claim in that regard. In absence of any material brought on record to show the basis for such further categorization of work into one constituting labour work, and the other constituting works contract, which also included labour component, the authorities cannot be said to have acted in an unjustified manner in discarding the assessee’s claim in that regard. In absence of any material brought on record to the contrary, the finding of the Tribunal that remainder i.e. after excluding the earthwork, entire contract constitutes the works contract and that 30% thereof was liable to be appropriated towards labour charge is based upon correct interpretation of Rule 9(3) and the grievance of assessee in that regard cannot be accepted. The question posed for consideration in that regard is answered by holding that Tribunal was justified in treating the quantum of works contract to be Rs. 41,04,40,584/- and appropriating 30% thereof towards labour charges. 9. The other plea raised by Sri Krishna Agrawal is with regard to addition made by the Tribunal to the value of Sand, Ballast Stone, Morang etc. after passing of remand order by this Court. It is contended that this Court vide order dated 22.2.2017 had categorically accepted the assessee’s plea that in absence of any material existing on record, the purchase of stone (Khanda) amounting to Rs. 40 lacs could not be included in the turnover of assessee. It is pointed out that this amount has now been sought to be made up towards purchase under different heads i.e. Sand, Ballast Stone, Morang etc. It is contended that there is no basis to increase the amount in that regard. It is also submitted that such calculation by the Tribunal is merely with an intent to equalize the figures and to nullify the impact of the order of this Court dated 22.2.2017. Learned Standing Counsel has not been able to demonstrate any basis to increase the amount in that regard. The order of Tribunal, therefore, in so far as it increases the quantum of purchases made by Rs. 7 lacs and sale of Rs. 10 lacs cannot be sustained. The order of Tribunal, therefore, is modified to that extent. 10. The revision stands disposed of, accordingly