COMMERCIAL TAXES OFFICER Vs. BRAHAM PRAKASH MODI

JUDGEMENT

(1.) BY this instant sales tax revision petition, the petitioner -Department has assailed the order passed by the Tax Board dated September 30, 2003 by which the order of the Deputy Commissioner (Appeals) was affirmed who vide order dated May 31, 2002 allowed the claim of the respondent -assessee. Brief facts of the case as emerging on the face of record are that the assessee -respondent is a contractor and during the course of its business of construction, he purchased high speed diesel from M/s. Bharat Petroleum Corporation by issuing declaration form "ST -17" and paid tax at the rate of four per cent on purchase of diesel on Rs. 26,61,800. However, the assessing officer came to the conclusion that the assessee -respondent cannot be said to be manufacturer, therefore, he was not entitled to the lower rate of tax at the rate of four per cent and avail of the benefit of declaration "form 17". According to the assessing officer, the respondent was liable to rate of sales tax otherwise applicable on purchase of high speed diesel and therefore the assessing officer levied the differential tax on eight per cent on the aforesaid purchase of diesel.

(2.) DISSATISFIED with the imposition of the said levy of tax, the respondent -assessee carried the matter in appeal before the Deputy Commissioner (Appeals) who vide order dated May 31, 2002, allowed the appeal of the assessee and held that the assessee was correct and justified in issuing the declaration "form 17", in purchasing the high speed diesel at the rate of four per cent in view of section 10(3) of the Rajasthan Sales Tax Act.

(3.) COUNSEL for the petitioner, Shri R.B. Mathur, submitted that the contractor cannot be said to be involved in the business of processing. He submitted that the assessee is in the business of developing roads and for that purpose, he mixes the rody, concrete and cement and all these cannot be said to be processing. He submitted that the benefit was to be provided when one firm purchases goods by issuing "form 17" and is involved in processing. He submitted that the assessing officer was correct in his conclusion of levy of additional tax of eight per cent inasmuch as the correct rate was 12 per cent, whereas by issuing declaration "form 17", the respondent paid tax at four per cent only and therefore, the order of the assessing officer needs to be maintained and order of the Tax Board deserves to be reversed.