1. This application has been filed under Section 8(1), Rajasthan Taxation Tribunal Act, 1995 for quashing the order dated November 9, 1995, annexure 5 of the Commissioner, Commercial Taxes, Jaipur, assessment orders dated May 6, 1996, annexure 3 and dated February 26, 1996, annexure 4, relating to the assessment years 1989-90 and 1991-92 respectively and attachment order dated August 3, 1996, annexure 8, for holding the contract, annexures 1 and 2 as a contract for work and labour and not a contract for sale and for transferring the case to any independent assessing authority for decision, ignoring the said order dated November 9, 1995, annexure 5.
2. In the application, it has been averred, in short, as follows : The State of Rajasthan through the Secretary, P.H.E.D., Jaipur, granted contract, annexures 1 and 2, to the petitioner for carrying out the construction work in respect of Bisalpur Water Supply Project. It is a turn-key project and substantially a works contract. By notification dated July 19, 1995 issued under Rule 3, Rajasthan Sales Tax Rules, 1955, the jurisdiction of various assessment officers was defined. As the work assigned to the petitioner was purely under a works contract, it submitted its returns to the Commercial Taxes Officer, Works Contract and Leasing Tax Circle, Ajmer. In pursuance of the order dated November 9, 1995, annexure 5, the petitioner's case has been transferred by the Commissioner from the Commercial Taxes Officer, Works Contract and Leasing Tax Circle, Ajmer, to Commercial Taxes Officer, Special Circle, Ajmer. Relying upon the said order of the Commissioner dated November 9, 1995, annexure 5, the Commercial Taxes Officer, Special Circle, Ajmer, passed assessment orders, annexures 3 and 4, treating the contract, annexures 1 and 2, as a contract of sale.
Appeals have been filed before the Deputy Commissioner (Appeals) along with stay applications. The stay applications were dismissed by his common order dated August 16, 1996, annexure 7. The assessing authority has issued order, annexure 8, under Section 11A, Rajasthan Sales Tax Act, 1954 for attachment of its bank account. The P.H.E. department (respondent No. 4) has been deducting tax at 2 per cent at source.
3. In his reply, the Commercial Taxes Officer, Special Circle, Ajmer (respondent No. 3) admits almost all the aforesaid averments except that the contract, annexures 1 and 2, is not a contract for sale of pipes and the Commissioner by his order dated November 9, 1995, annexure 5, has directed to treat the said contract as a contract for sale. It has further been averred that the Commissioner by his order dated November 9, 1995, annexure 5, passed under Section 41(4), RST Act, 1994 has simply transferred the petitioners' case from Commercial Taxes Officer, Works Contract and Leasing Tax Circle, Ajmer, to the Commercial Taxes Officer, Special Circle, Ajmer, for administrative reasons, it does not contain any direction on merits of the case and the Commercial Taxes Officer, Special Circle, Ajmer, was the assessing authority of the petitioner at the relevant time. It has also been averred that the petitioner has already filed appeals before the appellate authority, it cannot seek two remedies at the same time and, therefore, the present application is not maintainable and it deserves to be dismissed.
4. On the stay application, order was passed by the Tribunal on September 2, 1996. Its operative part runs as under : "(i) The petitioner-firm shall be entitled to recover its amount from PHED. This amount shall be deposited in the foregoing bank accounts of the petitioner-firm.
(ii) That the petitioner-firm shall be entitled to operate the bank accounts subject to the limitation that an amount of Rs. 1.13 crore shall remain deposited in those accounts. In other words, the balance of Rs. 1.13 crore shall be maintained in the bank accounts taken together.
(iii) That until the final disposal of this stay application the respondents Nos. 1 to 3 shall not withdraw/recover this amount of Rs. 1.13 crore from any of the two bank accounts of the petitioner-firm.
(iv) This ad interim stay order shall be in operation until the stay application is finally decided by this Tribunal." 5. It has been contended by the learned counsel for the petitioner that the contract, annexures 1 and 2, is a contract for works and labour and not for sale of pipes ; the assessing authority has seriously erred in holding the said contracts as a contract for sale of pipes by his assessment orders, annexures 3 arid 4. In support of his contention, he relied upon the judgment of the Orissa High Court dated December 10, 1981 (1982) 4 STL 243 (Indian Hume Pipe Co. Ltd. v. State of Orissa) and of the Allahabad High Court dated My 21, 1993 (Mohd. Kaleem & Sons v. Commissioner of Sales Tax) both given in petitioner's cases involving same kind of contracts, and the order of the honourable Supreme Court dismissing Civil Appeal Nos. 11--34, 13 of 1984 filed by the State of Orissa. He further contended that the order dated November 9, 1995, annexure 5 of the Commissioner has wrongly been construed by the assessing authority as an order holding the contract, annexures 1 and 2, as a contract for sale and not for work and labour. He also contended that even assuming the contract to be a contract for sale of pipes, no sale took place during the assessment year 1989-90 as per terms of the contract and as such no tax accrued during this period. He lastly contended that the order of the Commissioner dated November 9, 1995, annexure 5, would also prejudice the appellate authority on merits of the case if it is not quashed.
6. In reply, it was contended by the learned counsel for the department that admittedly appeals have been filed by the petitioner against the assessment orders, annexures 3 and 4, and stay applications have been dismissed by the Deputy Commissioner (Appeals) and, therefore, the application moved under Section 8(1) of the Rajasthan Taxation Tribunal Act, 1995 is not maintainable and deserves to be dismissed on this ground alone. He further contended that the order dated November 9, 1995, annexure 5, of the Commissioner has not touched the merit of the case, there was no question of the assessing authority being prejudiced by it and the assessment orders have been passed in accordance with the law.
7. Admittedly, appeals are pending before the Deputy Commissioner (Appeals), Ajmer, against the assessment orders, annexures 3 and 4.
Stay applications have been dismissed by him and above quoted stay order has been passed by this Tribunal. It is neither necessary nor expedient to say anything about the merits of the assessment orders, annexures 3 and 4, as appeals against them are still pending. Under the facts and circumstances of the case it may be said that the petitioner has a prima facie case for the confirmation of the said stay order. If the stay order is vacated, the petitioner would suffer an irreparable injury. The balance of convenience is also in its favour. Tax at 2 per cent is being deducted at source by the awarder (respondent No. 4). The abovequoted stay order has duly watched the interests of the respondents. It deserves to be confirmed.
8. It is not necessary to quash the order dated November 9, 1995, annexure 5, of the Commissioner, Commercial Taxes Department, Rajasthan, Jaipur. In this regard, it may simply be observed that the Deputy Commissioner (Appeals) would not be prejudiced in any way on the merits of the case by this order, annexure 5, This order will simply be taken as an order passed under Section 41(4), RST Act, 1994 transferring the case from Commercial Taxes Officer, Works Contract and Leasing Tax Circle, Ajmer, to Commercial Taxes Officer, Special Circle, Ajmer.
9. The abovequoted stay order passed by this Tribunal on September 2, 1996 is confirmed and it will continue till the disposal of the appeals filed against the assessment orders, annexures 3 and 4. The Deputy Commissioner (Appeals), Ajmer, will decide them by March 31, 1997.
10. The application moved under Section 8(1), Rajasthan Taxation Tribunal Act, 1995 is accordingly disposed of. Any observation made in this order will not prejudice the case of either party.