These revision petitions under section 11 of the U. P. Sales Tax Act are directed against a common order dated July 21, 1995 passed by the Sales Tax Tribunal, Kanpur, whereby it dismissed the dealers second appeal against the levy of penalty under section 8-D (6) in the sums of Rs. 89,000, Rs. 1,00,000 and Rs. 1,72,690 respectively for the assessment years 1987-88, 1988-89 and 1989-90.

I have heard the learned counsel for the revisionist Sri Rakesh Kumar Agarwal and Sri R. D. Gupta, learned Standing Counsel.

By section 3-F inserted with effect from September 13, 1985 transfer of property in goods, whether as goods or in some other form involved in the execution of a works contract became taxable under the Act. Section 8-D, that was enacted by U. P. Act No. 17 of 1987 with effect from April 27, 1987, made a provision for deduction of tax at source and obliged every person for making to any dealer for discharge of any liability on account of valuable consideration for the transfer of property in goods, whether as goods or in some other form in pursuance of a contract not being a contract of such class or value as may be notified by the State Government to deduct an amount equal to 4 per cent at the time of making payment to the contractor. Sub-section (6) of section 8-D provides for levy of penalty where a person obliged to make a deduction as aforesaid fails to make a deduction from the payment made to the contractor. The present revisionist is a hospital owned and managed by the State of U. P. during the three years under consideration. It had made certain payments to the contractor, who was engaged for executing works like minor repairs, white and colour washing of the building and painting and polishing doors, etc. It had made no deduction from the payments made to the contractors engaged in the said works and on receipt of information from the Special Investigation Branch the assessing officer initiated action for the levy of the penalty. The case of the officers of the revisionist who put in appearance before the assessing officer was that they did not know of the requirement to deduct the amounts and now they are doing so. This explanation was not accepted by the assessing officer and the first and second appeals failed.

Under section 3-F the Government has to notify the manner in which the turnover of a works contract shall be determined and has also to prescribe rates of tax and different rates may be prescribed for different goods or different class of dealers. The result is that unless the requisite notification is issued no liability can be determined by the provisions of section 3-F itself. In exercise of the powers under section 3-F the Government issued a notification dated April 27, 1987, prescribing the various types of works in respect of which the turnover shall be liable to tax. The notification also says that the tax shall be levied only if the turnover exceeds Rs. 1 lakh and the turnover has to be determined in the manner specified in rule 44 (b ). The result is that only the turnover has to be determined in the manner specified in rule 44 (b ). The result is that only the turnover in respect of works contracts mentioned in the Schedule to the said notification is liable to tax. The Schedule mentioned various types of work which include civil works like construction of buildings, bridges, roads, dams, barrages, sewage, spillways and diversions, installation of doors, door frames, windows, window frames and grills, supplying and fixing of tiles, slabs, stones and sheets. What is significant is that the Schedule in the notification does not mention the works like minor repairs in the buildings or white and colour washing thereof or the painting of doors and windows, etc. , and the turnover of contractor who is engaged in such activities is not taxable. Section 8-D does not specify the works contracts in respect of which the deduction shall be made but since the deduction is in respect of tax