Rajes Kumar, J. - (1.) PRESENT revision under Section 11 of U.P. Trade Tax Act (hereinafter referred to as "Act") is directed against the order of Tribunal dated 8^th March, 2000 for the assessment year 1989 -90 under U.P. Trade Tax Act. '
(2.) APPLICANT is a Co -operative Society, registered both under the U.P. Trade Tax and Central Sales Tax Act. Applicant is a unit owned by U.P. Co -operative Sugar Factories Limited, Lucknow and is registered under the Co -operative Societies Act. It has a distillery named as Majohla Distillery and Chemical Works at Majhola, district Pilibhit. On 13.07.1986 applicant entered into a contract with M/s Chemical Consultants and Engineers, Maharashtra for the establishment of effluent treatment plant on turn key basis at its unit. The copy of the contract is annexure -1 to the revision petition. This contract was executed during the year under consideration and the last payment upto 31.03.1990 was to be made at Rs. 132 crores. Against the payment made to the contractor for the assessment year 1987 -88, a sum of Rs. 94,054/ - was deposited towards the tax deduction at source. Further a sum of Rs. 1,30,114.83p. and Rs. 3,03,831.17p. were deposited by challan Nos. 271 and 272 dated 28.03.1994. Since the tax was not deposited within the stipulated time in accordance to Section 8 -D (1) of the Act and Sub -section (3), a notice under Section 8 -D (6) of the Act was issued. Assessing authority levied the penalty at 4,33,946/ - under Section 8 -D (6) of the Act. Assessing authority was of the view that as against the total payment of Rs. 1.32 crore, a sum of Rs. 5.28 lacs should be deposited under Section 8 -D (1) of the Act, while the applicant could deposit only a sum of Rs. 94,054/ - and the balance amount of Rs. 4,33,946/ - could not be deposited by 30.04.1990, thus, the penalty was levied. Order passed by the assessing authority has been confirmed in appeal and by the Tribunal also. Heard Sri Bharat Ji Agrawal, learned Senior Advocate appearing on behalf of the applicant and Sri B.K. Pandey, learned Standing Counsel.
(3.) LEARNED Counsel for the applicant submitted that in the contract one of the item provided was bio -gas plant. He submitted that bio -gas plant was exempted from tax under the Act vide notification No. ST -II -7038/X -7(23)/83 -U.P. Act -XV/48 -Order -85, dated 31.01.1985 and, therefore, on the value of bio -gas plant, applicant was not liable to deposit any tax and to that extent penalty should be deleted. Learned Standing Counsel submitted that the contract was for the "designing, preparing engineering layout, manufacturing procuring supplying, erecting and commissioning and to do all the connected civil works for the distillery effluent treatment plant on turn key basis". The whole of the contract was to be executed in two phases. The contract price for the first phase was stipulated at Rs. 1 crore and for second phase at Rs. 32 lacs. The entire work was to be executed namely, fabrication and commissioning etc. at the site. He submitted that for the commissioning and erection of the entire effluent treatment plant, one of the plant, to be commissioned and erected was the bio -gas plant and as per the agreement certain specified parts were required to be used in such bio -gas plant. He submitted that bio -gas plant as such was not supplied by the contractor but in the process of the construction of effluent treatment plant, bio -gas plant had to -be fabricated and commissioned as the part of the effluent treatment plant. He submitted that in the whole contract, various items, which were used in the execution of the works contract were liable to tax under Section 3 -F of the Act and not the bio -gas plant.;