In the High Court of Punjab and Haryana, Chandigarh VATAP No. 26 of 2009 Date of Decision: November 11, 2009 New Model Industries Pvt. Ltd. …Appellant Versus State of Punjab and another …Respondents CORAM: HON’BLE MR. JUSTICE M.M. KUMAR HON’BLE MR. JUSTICE JASWANT SINGH Present: Mr. Kashmiri Lal Goyal, Senior Advocate, with Mr. Sandeep Goyal, Advocate, for the appellant. Mr. Piyush Kant Jain, Addl. AG, Punjab, for the respondents 1. To be referred to the Reporters or not? Yes 2. Whether the judgment should be reported in the Digest? M.M. KUMAR, J. This appeal filed under Section 68 of the Punjab Value Added Tax Act, 2005 (for brevity, ‘the VAT Act’) challenges order dated 17.11.2008 passed by the Value Added Tax Tribunal, Punjab, Chandigarh (for brevity, ‘the Tribunal’) in Appeal No. 511 of 2005-06, in respect of Assessment Year 1993-94. 2. Brief facts necessary for disposal of the controversy raised in the instant appeal are that the dealer-appellant is engaged in the manufacturing of bus bodies on the chassis as per design, specifications and seating capacity supplied by its customers. It has been claimed that VATAP No. 26 of 2009 the dealer-appellant neither making bodies for sale nor keeps the same in stock. It also undertook the repair work and resale of iron and steel. 3. On 16.9.1998, a surprise checking was conducted by the officers of the revenue on the premises of the dealer-appellant. A detailed show cause notice, dated 8.10.1998, was issued by the Assessing Authority directing the dealer-appellant to produce requisite documents such as cash book, ledger, purchase vouchers, balance sheet with profit and loss account, bill books, trading account etc. and purchase orders for the years 1993-94 to 1997-98. These proceedings eventually culminated into passing of an assessment order dated 27.7.1999 (A-2) in respect of Assessment Year 1993-94. The Assessing Authority raised an additional demand of Rs. 25,13,809/- under the provisions of the Punjab General Sales Tax Act, 1948 (for brevity, ‘PGST Act’). Against the order dated 27.7.1999, the dealer-appellant preferred an appeal under Section 20(5) of the PGST Act. The Deputy Excise and Taxation Commissioner (Appeals), Jalandhar Division, Jalandhar (DETC), vide order dated 21.9.1999 directed the dealer- appellant to deposit Rs. 17,00,000/- by 14.10.1999 and to produce the Treasury receipt on 15.10.1999 before him. Against the said order, the dealer-appellant filed an appeal before the Tribunal, which directed him to deposit Rs. 1,00,000/- by 15.5.2000 and to appear before the DETC. The dealer-appellant could not deposit the requisite amount and filed an application for extension of time for deposit of the amount. The Tribunal extended the time upto 1.1.2001 and directed the dealer- appellant to appear before the Appellate Authority on 8.10.2001. The amount was deposited and the Appellate Authority remanded the matter to the Assessing Authority to afford an opportunity to the dealer- 2 VATAP No. 26 of 2009 appellant to produce evidence and to pass fresh assessment order, vide order dated 28.1.2002 (A-3). 4. On 18.9.2002, the Assessing Authority again passed an assessment order. This time no demand under the PGST Act was raised but a demand of Rs. 5,70,080/- under the Central Sales Tax Act, 1956 (for brevity, ‘CST Act’) was raised (A-4). A sum of Rs. 4,68,458/- as penalty and interest under Section 10(6) and 11-D read with Section 9 of the CST Act, was also imposed. The dealer-appellant filed two appeals one under Section 20(10)(a) of the PGST and the other under Section 9 (2) of the CST Act read with Section 20(1)(a) of the PGST Act. On 11.1.2005 (A-4/A), the Appellate Authority again remanded the matter back to the Assessing Authority for passing a speaking order after verifying the facts as per the directions given in the earlier remand order dated 28.1.2002. 5. On 28.3.2005, the Assessing Authority again passed fresh assessment orders under the PGST Act and determined the gross sales of the dealer-appellant at Rs. 2,16,66,610/-. After placing reliance on ‘D’ Forms, the Assessing Authority came to the conclusion that there was sale of motor vehicle bodies and the transactions were not of work contract as claimed by the dealer-appellant. It was further held that the sales were completed within the State and, thus, liable to sales tax under PGST Act. Accordingly, demand of Rs. 6,92,988/- towards tax was raised and penalty of Rs. 5,00,000/- under Section 10(7) of the Act was imposed (A-5). The appeal preferred by the dealer-appellant against order dated 28.3.2005, was dismissed by the Appellate Authority vide order dated 27.12.2005 (A-6) 3 VATAP No. 26 of 2009 6. Against the order dated 27.12.2005 (A-6), the dealer- appellant preferred further appeal before the Tribunal along with an application for entertaining the appeal without prior payment of demand. The Tribunal vide order dated 17.11.2008 disposed of the appeal holding the dealer-appellant liable to pay the tax due as shown in the order dated 28.3.2005 passed by the Assessing Authority. However, it has set aside the penalty of Rs. 5,00,000/- under Section 10(7) of the Act (A-9). 7. At the hearing, Mr. K.L. Goyal, learned senior counsel for the dealer-appellant has raised the following two questions of law for determination of this Court:- 1. Whether on the facts and in the circumstances of the case, the Tribunal was justified in holding that the erection of body on the chassis would amount to sale, contrary to the judgment of Hon’ble the Supreme Court in 38 STC 177? 2. Whether on the facts and in the circumstances of the case, the Tribunal was justified in holding that there would be no effect with regard to tax liability of the dealer even if the transaction is held to be inter state sale? 8. The first question of law does not survive as it has already been answered against the dealer-appellant by Hon’ble the Supreme Court in the case of Commissioner of Commercial Taxes, Mysore v. M.G. Brothers, [1975] 35 STC 24. Confronted with the aforesaid situation, Mr. K.L. Goyal, learned senior counsel could not point out 4 VATAP No. 26 of 2009 any distinguishing feature in the case in hand. Accordingly, the first question is answered against the dealer-appellant. 9. In respect of the second question, Mr. Goyal has argued that once it is certain that the goods were to move outside the State of Punjab then the transaction is required to be considered as inter state sale, which would not be assessable to sales tax. In support of his submission he has placed reliance on a Division Bench judgment of this Court in the case of State of Punjab v. Himachal Government Timber Depot, [1985] 58 STC 265 and argued that according to clause 3 of the agreement dated 1.12.1994 (A-1), the Haryana Roadways has undertaken to pay CST in addition to fabrication charges. The submission appears to be that once it is clear between the parties that the transaction is inter state, no tax under the PGST would be leviable. On a query by the Court, learned counsel has not disputed that as far as the dealer-appellant is concerned, it has to pay 4% tax either under the PGST or under the CST. 10. We have thoughtfully considered the submissions of the learned counsel. There are categorical findings recorded by the Tribunal that the agreement dated 1.12.1994 (A-1) stipulated fabrication of bus bodies on the chassis which were supplied by the Haryana Roadways to the dealer-appellant. A fixed amount of price was to be realised for each of the bus body to be fabricated on the chassis and no material for fabrication of bus body was to be supplied by the Haryana Roadways. Accordingly, the Tribunal on facts has concluded that there is no other possible construction except to infer that there was sale within the State of Punjab, which was liable to tax especially when the dealer-appellant had obtained ‘D’ Forms from Haryana Roadways as is 5 VATAP No. 26 of 2009 mandatory in case of sale made to Government department which is chargeable to tax at lower rate. 11. On the issue of inter state sale, the Tribunal has opined that even if the contention raised by the dealer-appellant is accepted and it was treated as an inter state sale on account of movement of goods from Punjab to Haryana, still the fact remains that the tax was assessable @ 4%, which has been charged by the respondent State. Accordingly, the Tribunal has concluded that no useful purpose would be served by remanding the matter for fresh assessment, especially when the dealer- appellant did not show the transaction to be inter state sale. Therefore, we are of the view that there would be no tax effect on the dealer- appellant in the facts and circumstances of the present case. Accordingly, while leaving the question of law open, we dismiss the appeal. 12. No other issue has been raised. 13. As a sequel to the aforesaid discussion, the appeal fails and the same is dismissed. (M.M. KUMAR) JUDGE (JASWANT SINGH) November 11, 2009 JUDGE Pkapoor 6