DY COMMR OF AGRL I T Vs. BIRIYUMMA

JUDGEMENT

(1.) The Revenue is the revision-petitioner herein. The matter arises in connection with an amendment effected in the Registration Certificate of the respondent/ assessee, a registered dealer under the Central Sales Tax Act. The assessee is the Proprietrix of Laxmi wood Peelers and Shama Retreads. She sought for inclusion of certain items of equipments used in tyre retreading business in the Registration Certificate under the C.S.T. Act. The certificate was amended on 26-9-1987, as applied for by the respondent/assessee. Thereafter, the assessing authority felt that 'Tyre Retreading' does not amount to 'sale' as defined in S.2(g) of the C.S.T. Act It was held that Tyre Retreading' was only works contract. On that basis, it was held that S.8(1) and 8(3) of the C.S.T. Act are inapplicable to the retreading activities of the assessee/ respondent. As soon as this aspect was found out, the amendment effected to the Registration Certificate under the C.S. T. Act including items required for tyre retreading business was cancelled. The assessee/respondent took up the matter in appeal before the Appellate Assistant Commissioner. The appeal was dismissed. In second appeal, the Sales Tax Appellate Tribunal held that the expression 'sale' in the C.S.T. Act includes transfer of property in the goods involved in the execution of works contract, in view of the Constitution 46th Amendment, and despite the fact that no amendment was effected to the definition of the expression 'Sale' in the C.S.T. Act. Aggrieved by the decision of the Sales Tax Appellate Tribunal dated 7-11-1989,-the Revenue has come up in revision.

(2.) We heard counsel for the Revenue, Special Government Pleader (Taxes) Sri N.N. Divakaran Pillai, as also counsel for the respondent/assessee Mr. M. A Manhu. Before us, it was common ground that as per the definition contained in S.2(g) of the C.S.T. Act, as it stands at present, works contract will not be taken, within its fold. S.2(g) of the C.S.T. Act defines "sale" thus:-

(3.) The Revenue assails the said decision of the Sales Tax Appellate Tribunal, dated 7-11-1989, on the ground that the Tribunal was in error in transplanting the definition contained in Art.366 Clause.29A of the Constitution of India in S.2(g) of the C.S.T. Act. It was argued that the Constitution 46th amendment would certainly give authority to the competent Legislatures to make provisions for the taxation of transfer of property in execution of such contracts. But, it is essential that the appropriate law (herein the C.S.T. Act) should adopt and make appropriate provision or amendment in the definition of the word "sale" in the C.S.T. Act. That has not been done. In the absence of any amendment to S.2(g) of the C.S.T. Act, it was erroneous to read into the said definition the content of Art.366 Clause.29A. Counsel for the assessee submitted that when once the Constitution has been amended, its provisions should form part of the relevant statutory provision.