PRAKASH KRISHNA, J. - (1.) THE present revision arises out of an order dated November 30, 1998 passed by the Trade Tax Tribunal, Ghaziabad, in Second Appeal No. 388 of 1996.
(2.) THE applicant, a limited company, incorporated under the Indian Companies Act is registered, both under the U.P. Trade Tax Act, 1948 and also under the Central Sales Tax Act, 1956. It is engaged in the manufacture and sale of 'sprinkler irrigation system' and its installation and erection on works contract. The dispute in the present revision relates to the assessment year 1991 -92 with respect to inter -State sale. Orders for erecting and installing the 'sprinkler irrigation system' were given to the applicant by the party situate outside the State of U.P. Under the contract, digging of earth, filing of sand, laying of pipes, connecting of pipes with clamps, fixation of sprinklers in the pipes, making the land plain in original shape and connecting with source of water and commissioning the system were required to be carried on by the dealer -applicant. It disclosed taxable turnover at Rs. 97,36,881.94. The assessing authority although accepted the account books of the applicant but levied tax on the amount of Rs. 7,00,000 on the material value of the goods used in the execution of works contract, vide order dated November 28, 1995. The said order has been confirmed by the first appellate authority in first appeal No. 3 of 1996 and by the Tribunal by the order under revision. In the memo of revision, the following four questions have been sought to be raised: (1) Whether in view of the law laid down by the honourable Supreme Court in the case of Gannon Dunkerley and Co. v. State of Rajasthan [1993] 88 STC 204, material moved outside the State of U.P. and used in the execution of works contract are liable to be taxed under the provisions of the Central Sales Tax Act ? (2) Whether, on the facts and circumstances of the case, the Trade Tax Tribunal was justified in law in imposing tax on the amount of Rs. 13,96,228.23 which was received by the applicant on account of execution of works contract, whereas the assessing authority himself has levied tax on the material used for the amount of Rs. 7,00,000 in the execution of works contract ? (3) Whether, on the facts and circumstances of the case, the Trade Tax Tribunal was justified in accepting the contention of the applicant that the works contract cannot be subjected to tax under the Central Sales Tax Act in view of the law laid down by the honourable Supreme Court in the case of Gannon Dunkerley and Co. [1993] 88 STC 204 ? (4) Whether in any view of the matter, the order passed by the Tribunal is illegal and liable to be set aside ?
(3.) HOWEVER , during the course of argument, Sri Bharatji Agrawal, learned senior counsel for the dealer -opposite party, submits only one point in support of the revision. The submission is that under unamended article 366 as also unamended definition of 'sale' in Section 2(h) mentioned in the Central Sales Tax Act prior to May 13, 2002 works contract is not included in the definition of 'sale'. He submits that the assessing authority was not justified in bringing the contract in two parts and treating it as sale of the goods, i.e., sprinklers and installation charges, etc., separately. The learned standing counsel, on the other hand, supports the impugned order.;