TARUN AGARWALA, J. - (1.) THE petitioner is a Government of India undertaking and has entered into a works contract with Rail Vikas Nigam Limited for construction of roadbed, bridges, installation of tracks and railway electrification on the Aligarh -Ghaziabad section in the State of Uttar Pradesh. The petitioner has filed the present writ petition for the quashing of the assessment order dated 11th March, 2010 passed by the Deputy Commissioner (Assessment), Ghaziabad for the assessment year 2007 -08 imposing tax on the goods being imported in the State of U.P.
(2.) THE contention of the petitioner is, that the Assessing Authority had no jurisdiction to levy tax under the works contract as the same was exempted under Section 3 of the Central Sales Tax Act, in view of the authoritative decisions of the Supreme Court in Gannon Dunkerley Vs. State of Orissa, 88 STC 205 as well as the decision of the petitioner i.e. C.I.T Vs. IRCON Ltd., 2005 UPTC 984 and CST Vs. IRCON LTD., (2013) 66 VSTC 432.
(3.) THE contention of the petitioner is that the goods have been imported from outside the State of U.P. for use in the execution of the works contract and that the movement of goods and its user in the execution of the works contract are integrally connected. The contention of the petitioner is that the movement of the goods from outside the State of U.P. used in the execution of the works at the site located in the State of U.P. is covered under Section 3 of the Central Sales Tax Act and, consequently, no tax is payable. Having heard Sri Bharat Ji Agarwal, the learned Senior Counsel assisted by Sri Parv Agarwal, the learned counsel for the petitioner and Sri C.B. Tripathi, the learned counsel for the State of U.P., we are of the opinion that the petitioner is required to establish that the goods purchased by him outside the State of U.P. is actually being utilized towards the works contract. Whether the goods that was ordered and imported in the State of U.P. and used as per the terms of the contract is a question of evidence, which can only be appreciated by a fact finding authority. Whether the deployment of goods was made in pursuance of the works contract are issues which are required to be adjudicated and decided by the authority concerned. The mere fact that the petitioner was exempted in the previous assessment year cannot be a ground to conclude that the transactions of this particular year is the same. The petitioner is required to establish that the goods purchased by him have actually been utilized towards the works contract. Such controversy is factual in nature, which can only be examined by the appellate authorities and cannot be examined in a writ jurisdiction.;