srk １ wp-1136-10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.1136 OF 2010 M/s. Larsen & Toubro Limited ... Petitioner Versus The State of Maharashtra and others. ... Respondents Mr. Vikram Nankani i/by Mr. Naresh Thacker for the petitioner. Ms. Lopa Munim with M. H.K. Bhalerao i/by M/s. Rajesh Kothari & Co. for respondent No.5. Mr. S.K. Nair, `A' Panel Counsel for respondent Nos.1 to 3. CORAM : MOHIT S. SHAH, C.J. & DR. D.Y. CHANDRACHUD, J. Monday, September 20, 2010 P .C. Rule. By consent, rule returnable forthwith. Counsel for the respondents waive service. With the consent of Counsel, taken up for final hearing. 2. In this petition under Article 226 of the Constitution of India, the petitioner challenges the order dated 17 March 2010 (Exhibit `F' at page 64 of the petition), passed under sections 33/35 of the Bombay Sales Tax Act, 1959 and also order dated 31st March, 2010 under section 9 of the Maharashtra Sales Tax Act for transfer of property in goods involved in execution of works Contracts (Re-enacted) Act, 1989. 3. In view of the order that we propose to pass, it is not necessary to set out the facts in detail but refer to the contentions urged by the learned counsel for the State that since what is under challenge is the assessment order srk ２ wp-1136-10 passed by the authority as prescribed by the statute, the petitioner has to be relegated to an alternate remedy of appeal under the respective Act. 4. The learned counsel for the petitioner submits that the issues raised in this petition are already covered in favour of the petitioner as per the judgment dated 10 July 2003 of the Andhra Pradesh High Court in Special Appeal Nos.54 and 55 of 1997 and Tax Revision Case No.14 of 1999. The Special Leave Petition against the said decision was also dismissed by the Apex Court on 26 March 2004. It is submitted that in the aforesaid decision, the Andhra Pradesh High Court has relied on the decision of the Apex Court in Gannon Dunkerley & Co. v. State of Rajasthan, (1993) 1 SCC 364 wherein the Apex Court observed as under:- "".............. the State Legislature, in exercise of its legislative power to impose a tax on the transfer of property in goods involved in the execution of a works contract under entry 54 of the State List read with Article 366 (29-A)(b), cannot levy such a tax in respect of transactions which are in the nature of sales in the course of inter-State trade and commerce or are sales outside the State levying such tax or are sales in the course of import inasmuch as it is beyond the legislative competence of the State Legislature to impose a sales tax on inter-State sales as well as sales outside the State and sales in the course of import or export....." 5. It is further submitted that it was necessary for the Assessing Officer to refer to the terms of the works contract but in the facts of the present case, the Assessing Officer did not require the petitioner to produce the works contract between the petitioner and ONGC and passed the impugned order in respect of the year under consideration involving execution of the works contract by the petitioner with ONGC and NPC. srk ３ wp-1136-10 6. It is submitted that although the works contract between the petitioner and ONGC was produced before the Assessing Officer, the Assessing Officer has not dealt with the contentions raised on behalf of the petitioner which contentions were based on the aforesaid decision of Andhra Pradesh High Court. It is submitted that the petitioner was called upon to produce the books of account. It is submitted that the contentions raised in this petition are based on the aforesaid decision of the Andhra Pradesh High Court against which Special Leave Petition came to be dismissed by the Apex Court and that the Assessing Officer ought to have applied the same principles for the assessment year under consideration. 7. The learned counsel for the respondent-State submits that the petitioner neither produced the contract between the petitioner and the ONGC nor cited the aforesaid decision of Andhra Pradesh High Court and therefore, the Court passed the impugned orders. 8. Having heard the learned counsel for the parties, we find that in view of the aforesaid decision of the Apex Court in Gannon Dunkerley (supra), the Assessing Officer is required to deal with both, the works contract including the contract between the petitioner and ONGC. Even if the petitioner did not produce the said contract during the course of assessment proceedings, the hearing was adjourned for 8 to 10 times as stated by the learned counsel for the petitioner. The Assessing Officer ought to have called upon the petitioner to produce the contract between ONGC and petitioner and thereafter ought to have applied the principles enunciated in the aforesaid decision dated 10 July 2003 of Andhra Pradesh High Court in the case of the very petitioner. 9. Accordingly, we are of the view that no fruitful purpose will be served by requiring the petitioner to file an appeal against the assessment srk ４ wp-1136-10 orders when the contract between the petitioner and ONGC was not on record of the Assessing Officer. Therefore, we set aside the impugned orders at Exhibits `F1' and `F2' and remit the matter back to the Assessing Officer for passing fresh orders in accordance with law after giving the petitioner opportunity of producing the works contract between the petitioner and ONGC and any other material the petitioner desires to produce, within one month from today. After the petitioner produces the works contract between the petitioner and ONGC and any other material the petitioner wants to submit, which shall be done within four weeks from today. In case, the Assessing Officer requires any further material to be produced, the Assessing Officer shall give the petitioner a notice to that effect within four weeks from the date of receipt of this order. The Assessing Officer shall issue notice of hearing to the petitioner. It is clarified that we may not be deemed to give any opinion and all contentions are kept open. 10. It is obvious that since the impugned assessment orders are set aside, any consequential orders or notices issued by the respondents shall not survive. 11. Rule is made absolute in the above terms. Petition stands disposed of. CHIEF JUSTICE DR. D.Y. CHANDRACHUD, J. srk ５ wp-1136-10