ORDER
N. Kumar, J.
1. The petitioner has preferred this revision petition under Section 23(1) of the Karnataka Sales Tax Act, 1957 (for short, hereinafter referred to as 'the Act') challenging the correctness of the order dated November 28, 2003 passed in S.T.A. No. 1275 of 2001 by the Kamataka Appellate Tribunal setting aside the orders of the assessing authority and the first appellate authority and remitting the matter back to the first appellate authority for fresh disposal in the light of the observations made in the said order.
2. The facts leading to this petition are as under:
The petitioner is a public limited company (for short, hereinafter referred to as 'the assessee'). The assessee was awarded contract in the year 1995-96 for construction of an indoor stadium within the premises of Sree Kanteerva Stadium at Bangalore. The work for construction of the stadium was commenced in the year 1996 and was completed in 1997-98. A part of the work was sub-contracted by the assessee and an amount of Rs. 1,25,30,500 was paid to the sub-contractor for the said contracted works. The assessee claimed that the payment made to the sub-contractor is not his turnover and, therefore, it does not also form part of total turnover to be liable to turnover tax under Section 6B. The assessing authority rejected the claim and levied turnover tax on the payment of Rs. 1,25,30,500 made to the sub-contractor. Appeal against the said assessment order was dismissed by the Joint Commissioner of Commercial Taxes (Appeals), Bangalore City Division-I. Aggrieved by the same, the assessee preferred a second appeal before the Karnataka Appellate Tribunal. The Tribunal held that the assessee is liable to payment of turnover tax since the incidence of turnover tax is multi-point. Payment of turnover tax by the sub-contractor is on his total receipts, which are different from the main contractor. The main contractor is liable to turnover tax, irrespective of the fact that the sub-contractor has paid the turnover tax. In the concluding part of the judgment, however, the Tribunal held that the issue required re-examination on the facts in the computation of gross turnover and taxable turnover and, therefore, it remanded the entire matter to the first appellate authority. As the Tribunal has categorically ruled that the petitioner is liable to turnover tax, the assessee has preferred this revision challenging the said finding.
3. Learned Counsel appearing for the assessee submitted in order to attract the liability to pay turnover tax, the assessee should have bought or supplied or distributed goods to the sub-contractor. In the instant case admittedly the assessee has paid money for execution of work by the subcontractor. Therefore, there is no sale and there is no turnover and, therefore, there is no liability to pay turnover tax under Section 6B. He also pointed out that the sub-contractor has paid the turnover tax on the works entrusted to him. Therefore, he cannot be called upon to pay turnover tax at his hands for the works done by the sub-contractor. In this connection he referred to Section 6B and definition of 'turnover' as found in Section 2(1)(v) and also the definition of 'sale' in Section 2(1)(t) of the Act.
4. However, the learned Government Advocate appearing for the respondents supported the order passed by the Tribunal.
5. In order to appreciate the rival contentions it is necessary to look at the provisions on which reliance is placed. Section 2(1)(t) of the Act defines 'sale' and it reads as under:
2(1)(t) 'Sale' with all its grammatical variations and cognate expressions means every transfer of the property in goods other than by way of a mortgage, hypothecation, charge or pledge by one person to another in the course of trade or business for cash or for deferred payment or other valuable consideration, and includes,--
(i) a transfer otherwise than in pursuance of a contract of property in any goods for cash, deferred payment or other valuable consideration ;
(ii) a transfer of property in goods (whether as goods or in some other form) involved in the execution of a works contract;
(iii) and (iv) ...
6. Section 2(1)(u1), (u2) and (v) defines what a 'taxable turnover', 'total turnover' and 'turnover' means. It reads as under:
2(1)(u1) 'Taxable turnover' means the turnover on which a dealer shall be liable to pay tax as determined after making such deductions from his total turnover and in such manner as may be prescribed, but shall not include the turnover of purchase or sale in the course of inter-State trade or commerce or in the course of export of the goods out of the territory of India or in the course of import of the goods into the territory of India;
(u2) 'Total turnover' means the aggregate turnover in all goods of a dealer at all places of business in the State, whether or not the whole or any portion of such turnover is liable to tax, including the turnover of purchase or sale in the course of the inter-State trade or commerce or in the course of export of the goods out of the territory of India or in the course of import of the goods into the territory of India ;
(v) 'Turnover' means the aggregate amount for which goods are bought or sold, or supplied or distributed or delivered or otherwise disposed of in any of the ways referred to in Clause (t) by a dealer, either directly or through another, on his own account or on account of others, whether for cash or for deferred payment or other valuable consideration.
7. Section 5B is the charging section in respect of execution of works contract and it reads as under:
5B. Levy of tax on transfer of property in goods (whether as goods or in some other form) involved in the execution of works contracts.--
Notwithstanding anything contained in Sub-section (1) or Sub-section (3) or Sub-section (3C) of Section 5, but subject to Sub-section (4), (5) or (6) of the said section, every dealer shall pay for each year, a tax under this Act on his taxable turnover of transfer of property in goods. (whether as goods or in some other form) involved in the execution of works contract mentioned in column (2) of the Sixth Schedule at the rates specified in the corresponding entries in column (3) of the said Schedule.
8. Rule 6 of the Karnataka Sales Tax Rules, 1957, provides for mode of determination of total and taxable turnover, relevant of which reads as under:
6. Determination of total and taxable turnover.--(1) The total turnover of a dealer, for the purposes of the Act, shall be the aggregate of--
(a) ...
(b) ...
(c) the total amount paid or payable to the dealer as the consideration for transfer of property in goods (whether as goods or in some other form) involved in the execution of works contract; and includes any amount paid as advance to the dealer as a part of such consideration;
(n) In the case of works contracts specified in serial numbers 6, 13, 14, 15,16, 18, 19, 20, 21, 22, 23, 24, 25, 28, 29, 30, 31, 32, 33, 34, 37, 38, 39 and 41 of the Sixth Schedule,--
(i) all amounts received or receivable in respect of goods specified in second, third and fourth Schedules which are purchased from registered dealers liable to pay tax under the Act;
(ii) all amounts received or receivable in respect of goods which are specifically exempted from tax under any of the provisions of the Act;
(iii) ...
Provided that no such deduction shall be allowed unless the dealer claiming deduction produces proof that the sub-contractor is a registered dealer liable to tax under the Act and that the turnover of such amounts is included in the monthly statement of return of turnover, as the case may be, filed by such sub-contractor.
9. In so far as levy of turnover tax is concerned, it is provided under Section 6B. During the relevant period April 1, 1987 to March 31, 2000 it reads as under:
6B. Levy of turnover tax.--(1) Every registered dealer and every dealer who is liable to get himself registered under Sub-sections (1) and (2) of Section 10 whose total turnover in a year is not less than the turnovers specified in the said sub-sections whether or not the whole or any portion of such turnover is liable to tax under any other provisions of this Act, shall be liable to pay tax.--
(i) at the rate of one and half per cent of the total turnover, if the total turnover is not more than one thousand lakh rupees in a year; or
(ii) at the rate of three per cent of the total turnover, if the total turnover is more than one thousand lakh rupees in a year:
Provided that the rate of tax payable for any year shall be at one and half per cent on the turnovers up to one thousand lakh rupees and at three per cent on the turnovers exceeding one thousand lakh rupees, if, the total turnover in the year immediately preceding that year was not more than one thousand lakh rupees.
10. A combined reading of the aforesaid provisions make it clear that, every dealer shall pay for each year tax on its taxable turnover at the rate prescribed at the point of first sale. In so far as execution of works contract is concerned, tax under the Act is liable to be paid on the basis of taxable turnover of transfer of property in goods (whether as goods or in some other form) involved in the execution of the works contract mentioned in column No. (2) of the Schedule VI at the rates specified in the corresponding entries in column No. (3) of the said Schedule. The word 'sale' as defined with reference to works contract, means, transfer of property in goods (whether as goods or in some other form) involved in the execution of a works contract. The reason is obvious. In a works contract, the principal contractor who entrust a part of a work to the works contractor, may supply the material or pay him cash/money for execution of the work. Therefore, the word 'sale' which is an inclusive definition takes within its ambit, even the value of the work paid by way of cash. In calculating the turnover the said amount has to be taken into consideration as representing the turnover in the hands of the main contractor. In so far as payment of taxable turnover is concerned, as is clear from Rule 6(1) read with Clause (n) and the proviso to the same, it is clear, if the sub-contractor is a registered dealer liable to tax under the Act, and the turnover of the said works contract is included in his monthly statement of return of turnover, the same is liable to be deducted, in the turnover at the hands of the principal contractor. But, that is not the position in computing turnover for the purpose of tax leviable under Section 6B of the Act. The reason is, that the sales tax is leviable at a single point, whereas turnover tax is leviable at multi-point, both at the hands of main contractor and the sub-contractor. The turnover tax is leviable on total turnover and not on taxable turnover. In fact, in the decision relied upon by the assessee in the case of Hindustan Dorr-Oliver Ltd. v. Union of India [1989] 75 STC 211, the Patna High Court dealing with the position of the goods supplied by the contractor to a sub-contractor has held that, a sub-contract, if granted validly and in terms of the provisions of the contract entered into by and between the principal and the main contractor, then it would be a part of the main contract itself. Therefore, in computing the total turnover of the main contractor the work entrusted to the sub-contractor has to be taken into consideration and then on the total turnover the main contractor is liable to pay turnover tax as is clear from the language employed in Section 6B of the Act. In other words, the turnover tax is liable to be paid both by the principal contractor and the sub-contractor independently. This judgment deals with liability of sales tax and not turnover tax.
11. The learned Counsel for the assessee also relied on a judgment of this Court in the case of Belgaum Structural Engineering Pvt. Limited v. Additional Commissioner of Commercial Taxes, Belgaum Zone, Belgaum [1998] 111 STC 222 where it has been held that, the sale price or the purchase price is nothing but the price paid for goods while purchasing or selling. The said judgment has no application to the facts of this case as they were referring to the taxable turnover and the sales tax liable to be paid. Nothing can be treated as turnover, which does not represent either sale price or the purchase price.
12. In fact, a Division Bench of this Court in the case of Rashtriya Ispat Nigam Limited v. State of Karnataka, decided on January 6, 2006 in Sales Tax Revision Petition No. 12 of 2004 has affirmed a similar view taken by the Tribunal on an earlier occasion, though there is no detailed discussion while affirming the said order of the Tribunal.
13. In view of the aforesaid discussion it is clear that, the value of the work entrusted to the sub-contractor has to be taken into consideration in computing the total turnover of the main contractor. Even though the main contractor has not supplied any material, the money paid by the main contractor to the sub-contractor falls within the definition of 'sale' and thus attracts Section 6B of the Act. Therefore, the finding recorded by the authorities is legal and valid and does not call for any interference. Accordingly, the revision petition is dismissed.
Parties to bear their own costs.