THE HONOURABLE SRI JUSTICE P.SAM KOSHY AND THE HONOURABLE SRI JUSTICE NARSING RAO NANDIKONDA TAX REVISION CASE No.233 OF 2008 ORDER : (per Hon’ble Sri Justice P.S am Koshy)

Heard Mr. T. Chaitanya Kiran, learned Assistant Government Pleader representing Mr. Swaroop Oorilla, learned Special Government Pleader, appearing for the petitioner and Mr. A.V.A. Siva Kartikeya, learned counsel for the respondent. Perused the record.

2. The present is a Tax Revision Case preferred by the State Government assailing the order dated 28.07.2008 passed in Tribunal Appeal No.452 of 2008 by the Sales Tax Appellate Tribunal, Andhra Pradesh, Hyderabad (hereinafter referred as, ‘the Tribunal’), for the Assessment Year 2001-02.

3. The question of law raised by the petitioner by assailing the order of the Tribunal was whether the nature of work executed by the petitioner in the business of printing to be treated as a works contract or as an outright sale.

4. Upon perusal of the impugned order and the findings given by the Tribunal, we find that the learned Tribunal has extensively dealt with the contentions raised by the respondent assessee while challenging the order passed by the revisional authority-Deputy Commissioner (CT) Hyderabad. It has been also reflected that the stand taken by the revenue was also extensively deliberated upon and discussed in the course of passing of the order and it has been held that the nature of work executed by the respondents is in fact works contract and not an outright sale. The learned Tribunal had fortified its view relying upon the judgment of the Hon’ble Supreme Court in similar factual backdrop in the case of State of Tamil Nadu v. Anandam Viswanathan, (1989) 1 SCC 613, wherein, the Hon’ble Supreme Court in paragraph Nos.25 to 28 has held as under:

“25. The court has to find out the primary object of the transaction and intention of the parties. In this connection, it is necessary to rely on the observations of this Court in Hindustan Aeronautics Ltd. case (supra) at pages 323.

26. The primary difference between a contract for work or service and a contract for sale is that in the former there is in the person performing or rendering service no property in the thing produced as a whole, notwithstanding that a part or even the whole of the material used by him may have been his property. Where the finished product supplied to a particular customer is not a commercial commodity in the sense that it cannot be sold in the market to any other person, the transaction is only a works contract.

See the observation in Court Press Job Branch, Salem v. The State of Tamil Nadu, and CST v. Ratna Fine Arts Printing Press.

27. In our opinion, in each case the nature of the contract and the transaction must be found out. And this is possible only when the intention of the parties is found out. The fact that in the execution of a contract for work some materials are used and the property/goods so used, passes to the other party, the contractor undertaking to do the work will not necessarily be deemed, on that account, to sell the materials. Whether or not and which part of the job work relates to that depends as mentioned hereinbefore, on the nature of the transaction. A contract for work in the execution of which goods are used may take any one of the three forms as mentioned by this Court in The Government of Andhra Pradesh v. Guntur Tobaccos (supra).

28. In our opinion, the contract in this case is one, having regard to the nature of the job to be done and the confidence reposed, for work to be done for remuneration and supply of paper was just incidental. Hence, the entire price for the printed question papers would have been entitled to be excluded from the taxable turnover, but since in the instant case the deemed notes prepared by the assessee showed the costs of paper separately, it appears that it has treated the supply of paper separately. Except the materials supplied on the basis of such contract, the contract will continue