JAGDISH SHARAN Vs. COMMISSIONER, COMMERCIAL TAXES

JUDGEMENT

(1.) The revisionist is a registered partnership-firm engaged in the business of construction of roads and supply of "gitti and rori". The revisionist as per the contract entered into with Rosa Power Supply Company Limited, Rosa (RPSCL) supplied concrete to the aforesaid company and admitted tax liability at the rate of four percent. The assessing authority treated the above supply as unclassified item and imposed tax at the rate of 12.5 percent. Against the assessment order revisionist filed an appeal before the Joint Commissioner (Appeals), Commercial Tax, Bareilly. During the pendency of the appeal, Notification No. 2-485 dated May 13, 2010 was issued by the State Government under section 3(11) read with section 81(2)(a) of the U.P. VAT Act whereunder liability to tax on aforesaid purchase was shifted upon the purchasing dealer, i.e., industries engaged in power generation, transmission and distribution with investment of more than 1,000 crore up to March 31, 2009. The said notification was made effective from January 1, 2008. Accordingly, revisionist who had realised a sum of Rs. 5,32,742 on the supply of concrete refunded the said amount by cheque No. 756370 dated October 31, 2010 drawn on Bank of Baroda to RPSCL. The refund of the said amount was certified by the RPSCL vide certificate dated December 2, 2010 and even form F as prescribed by the circular dated June 9, 2010 pursuant to the above notification was issued owning tax liability of the aforesaid amount for the period January, 2008 to March, 2008. RPSCL also issued certificate dated July 21, 2010 certifying that it had invested an aggregate capital of more than 1,000 crore till March 31, 2009.

(2.) The appellate authority though accepted form F but refused to recognise the refund of Rs. 5,32,742 and saddled the revisionist with the liability to pay aforesaid amount of tax.

(3.) Aggrieved the revisionist preferred further appeal to the Commercial tax Tribunal. The Tribunal vide order dated January 25, 2011 allowed the appeal by reducing the tax liability confirmed by the first appellate authority but remanded the matter to the assessing authority for the limited purpose of verifying the correctness/validity of the refund of Rs. 5,32,742 to RPSCL.