JUDGMENT

Rohit Ranjan Agarwal, J.

These are two sets of connected revisions. The first set of revisions arise out of judgment and order of the Commercial Tax Tribunal, Ghaziabad dated 07.07.2022 passed in Second Appeal No. 101 of 2022 (AY- 2013-14), Second Appeal No. 102 of 2022 (AY- 2014-15), Second Appeal No. 82 of 2022 (AY- 2012-13), Second Appeal No. 81 of 2022 (AY- 2015-16) and Second Appeal No. 212 of 2021 (AY- 2011-12) filed by assessee-revisionist, partly allowing the second appeal.

2. The other set of revisions being Revision No. 3 of 2023, 4 of 2023, 5 of 2023, 6 of 2023 and 7 of 2023 have been filed by the State challenging the judgment dated 07.07.2022 partly allowing five appeals of the assessee for the relevant period.

3. The revisions filed by assessee-revisionist being Revision No. 345, 346, 347, 348 and 349 of 2022 were admitted on 14.10.2022 on the following question of law:-

"A. Whether on the facts and circumstances of the case the Commercial Tax Tribunal was legally justified in holding that the turnover of the applicant will not have to be assessed as per Section 4(3) of the Value Added Tax Act but at the same time turnover has to be assessed as per Rule 9 of the Value Added tax Rules?

B. Whether in the facts and circumstances of the case the Commercial Tax Tribunal was legally justified in holding that the provision of Section 4(3) of the VAT Act will not apply in the case of work contract?"

4. Similarly, in revisions filed by the State, following question of law arises:-

"1. Whether on the facts and circumstances of the case, the Commercial Tax Tribunal was legally justified in estimating the value of goods imported out of State amounting to Rs.11,48,85,172/- on the basis of pro-rata basis against the actual import of Rs.8,97,18,323/- provided under Rule 9(1) and Clause (e) of the U.P. VAT Act Rules, 2008 and the law laid down in various decisions of the Court?"

5. As in all the revisions filed by the assessee and the State common question of law arises and the matter though pertaining to different assessment years raised identical question of law, the cases were heard together and are being decided together with the consent of the parties. The only difference is of the figure of the amount for the five assessment years in question.

6. The assessee before this Court is a civil contractor, the dispute relates to the Assessment Years 2011-12, 2012-2013, 2013-2014, 2014- 2015 and 2015-16. The question through these two sets of revisions raised by the assessee and the revenue are that whether the turnover of the assessee has to be assessed as per Section 4 (3) of the VALUE ADDED TAX ACT , 2008 (hereinafter called as 'VAT Act'), but at the same time it has to be assessed as per Rule 9 of the VALUE ADDED TAX RULES .

7. The assessee on the basis of work contract for the five different assessment years had carried out contract and was assessed by the assessing authority and an assessment order was passed under Section 28(2)(i) for the various assessment years wherein a tax liability was created and the assessing authority after granting 30% rebate as provided under Rule 9(3) from the total turnover declined to give benefit for the goods brought through Form 38 into the State of U.P. by contractor and levied the tax. The first appellate authority proceeded to hold that the levy of tax on turnover of sale in case of a dealer, selling any goods, not entitled to realise or has not realised if entitled amount of tax w