High Court Kerala High Court

State Of Kerala vs Alex.V.Chacko on 1 January, 2009

Kerala High Court
State Of Kerala vs Alex.V.Chacko on 1 January, 2009
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

ST.Rev..No. 243 of 2005()


1. STATE OF KERALA, REP. BY
                      ...  Petitioner

                        Vs



1. ALEX.V.CHACKO, VEKKEPPALLY MATTATHIL,
                       ...       Respondent

                For Petitioner  :GOVERNMENT PLEADER

                For Respondent  :SRI.C.C.THOMAS (SR.)

The Hon'ble MR. Justice C.N.RAMACHANDRAN NAIR
The Hon'ble MR. Justice V.K.MOHANAN

 Dated :01/01/2009

 O R D E R
                                                                                   C.R.
                    C.N.RAMACHANDRAN NAIR &
                               V.K.MOHANAN, JJ.
               ....................................................................
                           S.T. Rev. No.243 of 2005
               ....................................................................
                Dated this the 1st day of January, 2009.

                                          ORDER

Ramachandran Nair, J.

The question raised is whether sales tax recovered and remitted

by the awarder from the contractor’s bill is to be excluded from the

turnover for the computation of tax at compounded rate as provided

under Section 7(7) of the KGST Act. The assessment involved is for

the year 1998-99. Respondent-assessee was engaged in civil

construction work and he applied for permission to pay tax at

compounded rate under Section 7(7) of the Act. There is no dispute

that the work involved was civil construction work attracting tax at the

compounded rate provided under Section 7(7) of the Act. Special

Government Pleader appearing for the State contended that Section 7

(7) provides for payment of tax at compounded rate on the whole

amount of contract and not on the net amount received by the

respondent after recoveries of tax by the awarder. Counsel for the

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respondent contended that Tribunal was following their earlier order in

another case against which State has not filed revision. We do not

think the objection of the respondent is tenable because the failure or

omission to file revision in another case does not stand in the way of

the State filing revision in an appropriate case. The Tribunal’s order is

binding on the State only for the assessment pertaining to which

Tribunal has passed the orders. In other words, for other years or in the

case of any other assessee, the State is free to agitate the matter decided

by the Tribunal against it.

Section 7(7) which give rise to this revision case is extracted

hereunder:

“Notwithstanding anything contained in sub-section(1)
of Section 5 every contractor, in civil works of
construction of buildings, bridges, roads, railway
tracks, walls, including sea walls, dams and canals
including any repair or maintenance of such civil work
may at his option instead of paying tax in accordance
with Clause (iv) of that sub-section pay tax at the rate
of two percent, on the whole amount of contract and
which shall be deducted from the payments made by
the awarder at every time including advance payment
and shall remit it to Government in such manner as
may be prescribed.”

It is obvious from the above that the compounded rate of tax is

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provided on the whole amount of contract and not on the net amount

received by the contractor after recoveries of tax made by the awarder.

In fact, the scheme of deduction and payment of tax by the awarder

does not amount to determination of tax which is a matter of

adjudication by the Assessing Officer wherein assessee is entitled to

plead that recovery does not represent actual tax payable. The scheme

for deduction of tax is only a method of recovery of tax in advance on

an adhoc basis and the amount so recovered and remitted by the

awarder need not be actual tax payable. In other words, the assessee

is entitled to get credit of the entire amount recovered and remitted by

the awarder in the assessment. Consequence is that recoveries and

remittances so made will be treated as payments made by the assessee.

Therefore, until the assessment is completed, tax liability adjudicated

and credits given, the recovered amount remains unadjusted towards

tax. In fact, recovery of tax by the awarder from the contractor is not

similar to collection of tax by the dealer from the customers on sale of

goods. We, therefore, reverse the order of the Tribunal and hold that

the tax recovered and remitted by the awarder from the bills of the

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contractor should also be reckoned as turnover for the purpose of

determination of tax on contract amount, whether it be at compounded

rate or not. However, if the contract provides for separate

reimbursement of actual tax paid by the contractor over contract

amount, then the same will amount to tax collection under Rule 9(l)

warranting exclusion from taxable turnover. However, this does not

affect tax payable under the compounding scheme which is payable not

on taxable amount but on the whole contract amount which includes

the tax recovered from out of contract payments made by the awarder.

The S.T. Revision is allowed as above.

C.N.RAMACHANDRAN NAIR
Judge

V.K.MOHANAN
Judge
pms