JUDGMENT

Rohit Ranjan Agarwal, J.

Heard Shri Krishna Agarawal, learned counsel for the revisionist and Shri A.C. Tripathi, learned Standing Counsel for the State.

2. This revision has been filed under Section 58 of the U.P. Value Added Tax Act, 2008 (hereinafter referred to as 'Act of 2008') assailing the order passed by the Tribunal dated 7.8.2009 in Second Appeal No.655 of 1994 (89-90). This revision was admitted on 29.10.2021 on the following questions of law :-

"(1) Whether in view of the judgement of this Hon'ble Court in the case of Indian Sugar and General Engineering Corporation and Indian Railway Construction Co., where the value was bifurcated for supply and erection and the Hon'ble Court held that there is no liability of tax, still the impugned order passed by the Tribunal holding that the applicant is liable to tax is justified?

(2) Whether in view of the judgement of this Hon'ble Court in the case of Dharmex Pvt. Ltd., where it was held that the goods have been purchased from outside the State of U.P. to be used in execution of works contract, still the levy of tax under the U.P. Trade Tax Act is justified?".

3. The short controversy in the present revision is that whether the works contract awarded to assessee for the year 1989-1990 could be divided into two parts i.e. supply of goods and works contract. The Assessing Authority had made an assessment on 31.3.1994 holding that the assessee was liable to pay tax on the works contract which was awarded to it by the Auraiya Gas Power Project, District - Etawah. The assessee challenged the assessment order before the first Appellate Authority, who allowed the appeal in terms of the notification dated 27.4.1987, issued under Section 3(f) of the U.P. Trade Tax Act, 1948 (hereinafter referred to as 'Act of 1948'). The order of the Appellate Authority was confirmed by the Tribunal on the second appeal preferred by the Revenue.

4. Against the order of Tribunal, Trade Tax Revision No.771 of 2000 was preferred by the revenue before this Court and vide order dated 5.8.2008, order of Tribunal was set aside and the matter was remanded to Tribunal to rehear and decide the appeal afresh in light of the observations made by the Court. Post remand, the Tribunal decided the second appeal and allowed the same, vide impugned judgment dated 7.8.2009. Hence, the present revision.

5. Learned counsel for the revisionist submitted that the assessee is not covered under the notification dated 27.4.1987 and he cannot be taxed for the works contract executed as the description of works contract mentioned in the schedule of the notification does not match with the work, which has been awarded to the assessee. He further submitted that the agreement, which was entered between the assessee and the Auraiya Gas Power Project, clearly establishes in Clause 2.4 that the consolidated payment was to be made to the contractor for supply of goods and the works contract, so executed. According to him, there was no division between the work executed by the contractor and the cost of the material supplied.

6. He then invited the attention of the Court to Annexure-1, which is the work specification/tender executed between the parties, wherein at serial no.2 in column no.3, description of items has been given which not only includes the cost of the material but also the cost of laying the pipes and execution of the work. Column 7 mentions the amount of Rs.9,96,300/- to be paid to the contractor. The total amount of the contractor is Rs. 10,67,517/-.

7. Shri A.C. Tripathi, learned Standing Counse