A.PASAYAT, J. - (1.) DOUBTING correctness of the view expressed by a division Bench of this Court in Enertect Engineering Private Limited v. Sales Tax Officer, Bhubaneswar I Circle [1998] 110 STC 442, this reference has been made to the larger Bench to adjudicate the following questions : (1) Whether an assessee who executes works contract can ask for insertion of certain items in the certificate of registration issued under the Act or the Central Act to purchase the goods for resale ? (2) Whether it is entitled to receive declaration form XXXIV tinder the Act, and forms C and F of the Central Act ? The "act" and "central Act" REFERRED TO in the questions relate to Orissa Sales Tax Act, 1947 and the Central Sales Tax Act, 1956, respectively. A few provisions of the Act and the Central Act need to be noted. Section 2 (g) of the Act defines "sale" and section 20j) defines "works contract". Section 5 (2) (AA) deals with "taxable turnover in respect of works contract" and section 9 deals with "registration, of dealers". Rules 6 and 7 of the Orissa Sales Tax Rules, 1947 (in short, "the Rule") deal with application for registration and grant of registration certificate respectively. Certificate of registration is granted in form Ill. In the Central Act section 2 (g) defines "sale", section 7 deals with registration of dealers lend section 8 deals with rate of tax on sales in the course of inter-State trade or commerce. Under the Act turnover of works contract is distinct from ordinary turnovers.
(2.) IN each case, petitioner's prayer for insertion of certain goods in the certificates of registration issued under the Act and the Central Act in order to enable it to purchase goods free of tax/concessional rate has been turned down by the sales tax authorities. 'consequentially prayer for issuance of requisite declaration forms in order to avail such benefit has been turned down. According to the petitioners, the actions are indefensible inasmuch as being registered dealers they are entitled to such benefits. Brief reference to factual position in O. J. C. Nos. 2792 and 2793 of 1998 needs to be briefly stated. Controversy being similar in other cases, factual background is not necessary to be stated. Petitioner is a dealer registered under the Act. Its application for registration under the Central Act was rejected by the Sales Tax Officer. It executes works contract. Prayer was made to enlist/endorse the goods/classes of goods to be used for execution of works contract for resale in the appropriate column of the registration certificate issued under section 9-A of the Act, and for registration under section 7 (2) of the Central Act. So far as rejection of the prayer to include 13 items in column 2 of the registration certificate is concerned, the matter was carried in revision and the revisional authority has conferred it with the conclusion that if the items which the petitioner has applied for inclusion in the registration certificate are included then it will ask for availing the opportunity of purchasing the goods on the strength of declaration. But in the declaration form XXXIV which is used for purchase of goods on free of tax envisaged, there is stipulation that goods so 'purchased shall be resold in Orissa in a manner that such resale shall be subject to levy of tax under the Act. In case of execution of works contract, there shall be no sale and no goods will be utilised for execution of works contract and in that case there will be violation of the provisions. So far as denial to grant certificate of registration under the Central Act is concerned, the Sales Tax Officer was directed to issue registration certificate under section 7 (2) of the Central Act. But it was nevertheless observed that the Sales Tax Officer may or may not allow the works contractors to purchase the goods from outside the State on the strength of declaration form C, which is a separate issue. Stand of the learned counsel for Revenue is that the goods which are not intended for resale within the scope of section 5 (2) (A), but are merely meant for works contract under section 5 (2) (AA) of the Act cannot be incorporated in the certificate of registration. The Sales Tax Officer is obliged to fill up the clauses 2 and 3 of form 111 only if he is satisfied that such goods are intended for resale within the scope of section 5 (2) (A) and form XXXIV. Amendment of the Constitution of India, 1950 (in short, "the Constitution") ipso facts does not amend the expression "tax on the sale or purchase of goods" or any other definition of "sale" occurring in taxing statutes, unless the respective Legislatures amend the respective laws so as to bring in conformity with the scope of the Central Act vis a vis clause (29-A) of article 366 of the Constitution. Thus the concept of "deemed sales" can be operative in any statute, only if it is so envisaged and necessary amendment is effected. Without amendment, all grammatical variations of the expression "sale" continue as before.
(3.) BY way of reply, learned counsel for the petitioners submitted that in view of the decisions of the apex Court in Builders Association of India v. Union of India [1989] 73 STC 370, and Gannon Dunkerley and Co. v. State of Rajasthan [1993] 88 STC 204, absence of any amendment in the Central Act is of no consequence so far as taxability of works contract is concerned.;