TRIVENI ENGINEERING AND INDUSTRIES LTD Vs. STATE

JUDGEMENT

(1.) THESE two appeals raise a common question about the consti- tutional validity of Explanation II to Sec. 2 (38) of the Rajasthan Sales Tax Act 1994 (here- inafter called the Act of 1994) on the envil that it is ultra vires the legislative competence of the State Legislature to enact a law by providing that `notwithstanding the agreement for works Contract has been wholly on in part entered into outside the State or the goods have been wholly or in part moved outside the State, still it shall be deemed to be sale inside the State if the goods are in the State at the time of their use, application or incorporation in the execution of works contract as it impinges on Item 92a of the Union list of Schedule VII and the provisions of Article 286 of the Constitution of India.

(2.) WE may notice the facts in brief giving rise to these two appeals separately.

(3.) THE assessee in his writ petition initially has challenged the order of Rajasthan Tax Board. However no ground about validity of Explanation II Clause (a) of Section 2 (38) was raised in the writ petition. THE said writ petition came to be dismissed by the order under appeal dated 14. 12. 98 by the learned Single Judge keeping in view of the fact that the appeal filed against the provisional assessment order was still pending and the order was only refusal to interfere with the interim order passed by the Dy. Commissioner (Appeals) by which recovery of 50% has been stayed, but for rest, the stay application has been rejected.