LARSEN AND TOUBRO LIMITED Vs. COMMERCIAL TAX OFFICER

JUDGEMENT

(1.) THE above three writ petitions involve common and identical issues and, therefore, are dealt with together since submissions were also made by the counsel appearing on either side in common.

(2.) (I ). (i) W. P. No. 9376 of 1989 has been filed for a writ of mandamus seeking for a direction to the respondents to issue to the petitioners "c" forms prescribed under rule 12 (1) of the Central sales Tax (Registration and Turnover) Rules, 1957, to enable them to procure and purchase materials and goods for effecting sale and transfer of property in goods involved in the execution of works contract and to forbear from penalising the petitioners under section10-A of the Central Sales Tax Act, 1956, for the procurement of goods and materials against "c" forms in the course of inter-State trade for use in the execution of works contract. (ii) The sum and substance of the claim of the petitioners is that they are having orders for the receipt of "c" declaration in the State of Madhya Pradesh, Uttar Pradesh and Maharashtra, but the second respondent and its officers are refusing to permit the petitioners to issue "c" declaration in relation to goods and materials purchased for their use in their execution of works contract. According to the petitioners, this resulted in the escalation of the cost of material and place the petitioners in an uncompetitive position as against dealers in the other States as well as those buying and selling the goods within the State. The petitioners claim that they are engaged in the construction, building and handing over on turnkey basis several mechanical, civil and electrical works under contract entered into with various Governments, quasi-Governmental undertakings and public sector institutions for the construction of dams, buildings, installation of power stations, cooling towers, etc. , besides contracts with various Electricity Boards and Railways. For the said purpose, it is stated that the petitioners have to purchase cement, steel, electrical goods, mechanical equipment, machineries, accessories etc. (iii) Reference is made to the amendment introduced to the Constitution by the Constitution (Forty-sixth amendment) Act, 1982, inserting the definition of "tax on sale or purchase of goods" and it is claimed that in view of the said Amendments as well as the Tamil Nadu General Sales Tax (Fourth Amendment) Act, 1984 (Act 28 of 1984), the petitioners have been approaching the first respondent for securing "c" declaration under the Central Sales Tax Act in order to secure the concessional rate of purchase under section8 (1) of the Central Sales Tax act, 1956ii. W. P. No. 9377 of 1989 : The petitioners in this writ petition engaged in the manufacture and contracting and handing over on turnkey basis several mechanical, also electrical and civil contracts with various Government departments, quasi-Government undertakings and other public sector institutions, besides Electricity Boards and Railways, have filed the writ petition for a writ of mandamus seeking relief on the same terms as the petitioner in W. P. No. 9376 of 1989. It is claimed that the petitioners are already registered dealers under the Central Sales Tax Act, 1956 and the Tamil nadu General Sales Tax Act, 1959. In all other respects, the grounds urged for the petitioners in the affidavit are almost similar to the one in the other writ petition. III. W. P. No. 2023 of 1990 has been filed for a writ of certiorarified mandamus to call for the records and quash the proceedings of the first respondent in Asst. No. 678075/89-90 dated November 3, 1989 and consequently direct the first respondent to issue "c" forms against the application dated November 2, 1989. (i) Under the impugned order, the first respondent informed the petitioner that unless the provisions of the Central Sales Tax Act are amended so as to bring within its purview the works contract, "c" forms could not be used for purchase of goods to be used in the execution of works contract and consequently the request for supply of "c" forms for the purpose in question could not be complied with, since the issue and use of such forms have a specific purpose as visualised under section8 (3) of the act. The petitioners are a company carrying out contracts in Tamil Nadu and in particular contracts for railway electrification. The petitioners in the present writ petition also urged the very same grounds as urged in the other two writ petitions in support of their claim for the issue of the forms in question. In addition, it is contended that the impugned communication came to be passed without giving an opportunity and in violation of the principles of natural justice.

(3.) IN support of his submissions and the relief sought for, the learned counsel also relied upon the following judicial pronouncements, IN Unitech Ltd. v. Commercial Tax Officer, a Division Bench of the Andhra Pradesh High Court held that a dealer engaged in the execution of works contract is entitled to the supply of "c" forms and the question as to whether a particular "c" form has been correctly used or not does arise for consideration only at a later stage. The learned Judges were also of the view that after the 46th Amendment to the Constitution of india, the goods used in executing works contract are deemed to be sold and, therefore, there would be a sale of the material used in execution of the works contracts. IN Commissioner of Sales Tax v. Imphalbs Manufacturing Co. , a Division bench of the Madhya Pradesh High Court while construing section 7 (1) and 7 (2)held that while section 7 (1) casts an obligation on a dealer liable to tax under the Central Sales Tax Act to get himself registered, section 7 (2) enables the dealer liable to pay tax under the sales tax law of the State and not liable to tax under the Central Sales Tax Act, to get himself registered and that the two sub-sections are designed for two different purposes and to cater to the needs of two different classes of dealers. IN Deputy Commissioner of sales Tax (Law) v. Lakshmichand Vasanji & Co. , a Division Bench of the kerala High Court held that the dealer who purchased goods in the State of tamil Nadu by issue of "c" forms prescribed, for purposes of resale, brought the goods to Kerala and subsequently transported them to Bombay for sale therein did not commit any violation of law since there is no requirement obliging the dealer to sell the goods purchased only in the State of Kerala.