The beneficial provision of zero rated sales is mandatorily required to be a sale 'simpliciter' falling within the five categories enumerated in the definition of 'sale' as defined under Section 2(39) of the act.

JUDGMENT

1. The petitioner is a registered dealer under the provisions of the West Bengal Value added Tax act, 2003 (the 'act'), engaged in the business as reseller of furniture. The petitioner challenges the order passed by the learned West Bengal Taxation Tribunal (the 'Tribunal') in R.N. No. 1155 of 2018 dated 20.02.2020 and R.N. No. 1034 of 2019 dated 20.12.2017. The challenge to the order of the learned Tribunal is not in its entirety but only with regard to the finding of the Tribunal that the contract which was entered into by the petitioner with Tata Consultancy Services Ltd. (TCS) to be a works contract and liable for tax under the provisions of the act. The petitioner also challenges the order of the learned Tribunal dated 20.02.2020 to the extent it is held that the works contract is zero rated under Section 21 a of the act. The learned Tribunal had interpreted the nature of contract entered by the petitioner with TCS to be two separate contracts and should be considered according to the nature and purpose for which they have been entered into. This finding of the learned Tribunal has not been challenged by the petitioner. The petitioner also challenges the order passed by the learned Tribunal in a review application in R.W. 02 of 2020 to the extent that it holds if any agreement satisfies any condition of Section 2(57) of the act, it should be termed as 'works contract' even if there is payment towards labour charges as also the finding of the learned Tribunal that no grounds are made out to review the order passed by it. The facts which are necessary and relevant for disposal of the writ petition are as hereunder:

2. The case of the petitioner was selected by the Commissioner of Commercial Taxes under Section 46 read with Section 66 of the act for the period 01.04.2016 to 31.03.2017 as the authority thought it fit and proper to assess the petitioner for the reason that Input Tax Credit (ITC) in excess of Rs. 5,00,000/- has been carried forward to the next financial year. The final assessment order was passed on 26.06.2019. The assessing officer after considering the nature of the business of the petitioner, proceeded to examine the contracts entered into by the petitioner with TCS. The assessing officer pointed out that the petitioner had received a purchase order dated 16.09.2013 from TCS to supply material for interior and related allied works at their establishment in Rajarhat, Kolkata and had examined all terms and conditions specified in the order and also the invoices. The assessing Officer held that the order is actually a work order instead of a purchase order based on which the petitioner has raised three invoices, however, the petitioner failed to produce the prescribed form under Rule 26 O to certify that the taxable goods purchased from the petitioner have been used/ are intended to be used in the development of the Special Economic Zone (SEZ). The petitioner contended that the transactions with TCS are zero rated under Section 21 a read with Clause 4 in Schedule aa of the act which states that sale by a dealer to a dealer located in SEZs and in terms of Section 21 a of the act sale of goods between persons, whether dealer or not or organizations as specified in Column (2) of Schedule aa shall be zero rated as defined in Section 2(59) of the act. The assessing Officer held that if the transactions between the petitioner and TCS are 'sale', it will be zero rated and exemption tax. However, if it is a works contract, the transaction is taxable under Section 14 of the act. The assessing Officer held that the petitioner has done works contract in the SEZs and the same cannot be treated as 'zero rated'. accordingly, the entire transaction was treated as works contract and tax liability was computed.

3. The petitioner filed an application under Section 8 of the West Bengal Taxation Tribunal act before the West Bengal Taxation Tribunal (learned 'Tribunal') in R.N. 1155 of 2018 challenging the order dated 18.06.2