High Court Kerala High Court

M/S. Highway Contractors vs Sales Tax Officer on 26 July, 2007

Kerala High Court
M/S. Highway Contractors vs Sales Tax Officer on 26 July, 2007
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

WA No. 2348 of 2002(E)


1. M/S. HIGHWAY CONTRACTORS,
                      ...  Petitioner

                        Vs



1. SALES TAX OFFICER,
                       ...       Respondent

2. DEPUTY COMMISSIONER,

3. THE COMMISSIONER OF COMMERCIAL TAXES,

4. DEPUTY TAHSILDAR (R.R),

5. THE STATE OF KERALA,

                For Petitioner  :SRI.A.KUMAR

                For Respondent  :GOVERNMENT PLEADER

The Hon'ble the Chief Justice MR.H.L.DATTU
The Hon'ble MR. Justice K.T.SANKARAN

 Dated :26/07/2007

 O R D E R
                            H.L.DATTU, C.J.   &   K.T.SANKARAN, J.

                                  ------------------------------------------

                                                W.A.No.2348 of 2002

                                    ------------------------------------------

                           Dated, this the   26th    day of July,  2007


                                           JUDGMENT

H.L.Dattu, C.J.

This appeal arises out of an order passed by the learned Single Judge

in O.P.No.37501 of 2001 dated 10th July, 2002.

(2) In the writ petition, the assessee had called in question the orders

passed by the Sales Tax Officer imposing penalty under Section 10A of the

Central Sales Tax Act, 1956 (‘Act’ for short). The learned Single Judge has

rejected the writ petition filed by the assessee. That is how the assessee is

before us in this writ appeal.

(3) The facts in brief are: The assessee is a dealer registered both

under the provisions of the Kerala General Sales Tax Act and the Central

Sales Tax Act. The assessee is a contractor. The assessee had gone before

the registering authority for issuance of registration certificate. The assessing

authority/competent authority had granted the registration certificate to the

assessee. In the registration certificate it was made clear that the assessee

can effect inter state purchase of goods for the purpose of resale.

(4) The Sales Tax Officer being of the opinion that the assessee has

misused the C Forms, had initiated proceedings under Section 10A of the Act

for imposition of penalty. In the show cause notice issued on 9.11.1998, the

Sales Tax Officer had stated as under:

“Please take notice that on verification of the C Form

issue register and counter foils of C Forms it is noticed that you

have effected purchase of goods like machinery, machinery

spares etc., which are not been transferred for the execution of

the works contract. The details are as under.

xxx xxx xxx

W.A.No.2348/2002 2

As you are a Works Contractor and the registration

under the KGST Act and CST Act was granted accordingly,

you are not a manufacturer. Therefore you are not entitled to

the facility of using C Forms for the purchases of machinery,

parts, Motor Parts etc., as mentioned earlier, as provided under

section 8(3) of the CST Act 1956. As you have issued the C

forms you are liable for penal action as provided Under Section

10A for violation of Section 8(3). Total amount of the purchase

comes to Rs.180,25,936/-. It is therefore proposed to impose a

penalty of Rs.27,03,890/- being 15% of the tax due on the value

of the goods. Your objection if any against the proposal may be

filed at 11 AM on 17.11.98 in my office at Ernakulam.”

(5) After the receipt of the said show cause notice, the assessee had

filed his detailed reply, inter alia, bringing to the notice of the Sales Tax Officer

that the assessee was under the bona fide impression that he is entitled to

issue C Forms. The assessee also had relied upon the observations made by

the apex Court in the case of Builders Association of India and others v.

Union of India and others [(1989) 73 STC 370]. The material portion of the

objections filed by the assessee is as under:

“We have mainly undertaking Re surfacing of the road

and airport runway. We are using furnace oil, bitumin, metal

and we are mixing the same in the plant. We have purchased

Pavor Finisher, Drum Mix Plant from M/s.Gujarat Appolo

Equipments Ltd. and Asphalt Pavor Finisher from M/s. Appolo

Industries (P) Ltd. and Batching Plant from M/s.Bhai Sundardas

etc, being the plant for this purpose. We are informed that we

could buy this machinery by issue of C Form since these

machineries are used for mixing/manufacturing of ‘mix’. The

Board in their Circular No.20/93 (Tax) dated 13/8/93 directed

that C Form may be issued for works contractors. By a fiction

of law the works contract is divided in to sale of goods and

labour charges and as such after the 46th amendment the

materials used in the execution of contract is deemed to be a

sale. Supreme Court in Builders Association case (73 STC 370)

and the subsequent decisions, the position has been made

abundantly clear that by fiction of law the works contract stands

the same hutting as that of any other dealer. The Judgment of

Supreme Court in 73 STC on 31.3.89. We were under the

W.A.No.2348/2002 3

bonafide impression that we are entitled to issue of C Form

since we have followed the decision under the CST Act. The

Board has issued circular on 2.1.97. In Para 13, the Board has

given a direction that C Forms cannot be issued for the

purchase of machinery. We may submit that we have

purchased the issued C Form before 2.1.97.

We may further submit that we have not issued C Form

for purchase after 2.1.97. This also confirms bonafide and our

information that we could issue C Form for purchase of

machinery. Infact we have produced C Form register before the

Officer previously and we put his signature in the register. We

have issued C Form only after oral permission and clarification

from Sales Tax Officer at the time of issue.

We may also submit that in all these cases we have paid

4% tax on the purchases. Moreover out of the purchase the

following materials are purchased and used in the contract.”

(6) The Sales Tax Officer after considering the objections filed by the

assessee has proceeded to pass an order imposing penalty in a sum of

Rs.25,65,665/- by his order dated 30.1.1999.

(7) The first revisional authority modified the penalty imposed by the

Sales Tax Officer by reducing it to a sum of Rs.10,26,300/- by its order dated

4.6.1999.

(8) The said order was questioned by the assessee before the second

revisional authority. However, he was unsuccessful before the said authority.

That is how the assessee was before this Court in O.P.No.37501 of 2001. The

learned Single Judge has rejected the writ petition and that is how the assessee

is before us in this writ appeal.

(9) We have heard Sri.A.Kumar, learned counsel appearing for the

assessee and Sri.Mohammed Rafiq, learned Senior Government Pleader

appearing for the Revenue. Both the learned counsel have taken us through

several decisions of the various High Courts and also the Supreme Court. We

W.A.No.2348/2002 4

do not intend to refer to all those decisions, since we intend to remand the

matter to the Sales Tax Officer to reconsider the whole issue once over again.

(10) Admittedly, a show cause notice had been issued to the assessee

by the Sales Tax Officer before imposing penalty under Section 10A of the Act.

The assessee had filed his detailed objections and in that he had specifically

stated that the assessee was under the bona fide belief that he could issue C

Forms for effecting inter state purchase of the machinery and building materials

for the purpose of utilising the same in execution of the works contract. This

reasonable excuse offered by the assessee should have been taken note of by

the Sales Tax Officer and should have adverted to that aspect of the matter one

way or the other. For imposing any penalty under clause (a), (b), (c) and (d)

the guilty intention to evade tax is an essential ingredient of the offence. It is

the case of the learned counsel for the department that the offence made out

by the assessing authority would fall under clause (d) of Section 10 of the Act.

In this clause, the Parliament has used the expression “without reasonable

cause”, that only implies blameworthy conduct is an essential requirement of

the offence to fall under this clause. This fact has to be proved by the Sales

Tax Officer and the authority has to record a finding thereon. This has not

been done by the Sales Tax Officer. That only shows that there is total non

application of mind by the Sales Tax Officer. Therefore, we cannot sustain the

order passed by the Sales Tax Officer dated 30.1.1999.

(11) The aforesaid aspect of the matter should have been taken note of

by the hierarchy of officers before whom the assessee had filed revision

petitions. Even those revisional authorities have not noticed the specific

contention canvassed by the assessee in so far as the bona fide impression

W.A.No.2348/2002 5

that the assessee was entertaining while effecting inter state purchase of the

machinery and building materials for the purpose of execution of the works

contract.

(12) In view of that even those orders passed by the hierarchy of

officers before whom the revisions were filed by the assessee cannot also be

sustained.

(13) Lastly, the learned Single Judge ought to have appreciated the

aforesaid contentions canvassed by the assessee. But the learned Judge has

indicated in the order that in a case of this nature no mens rea is need not be

proved by the Sales Tax Officer. That view of the learned Single Judge may

not be correct in view of the decisions of the apex Court in the cases of

Hindustan Steel Limited v. State of Orissa [(1970) 25 STC 211] and

Cement Marketing Co. of India Limited v. Assistant Commissioner of

Sales Tax [(1980) 45 STC 197].

(14) Accordingly, the following:

Order

i) The writ appeal is allowed.

ii) The order passed by the learned Single Judge in O.P.No.37501 of

2001 dated 10th July, 2002 is set aside.

iii) The orders passed by the Sales Tax Officer and confirmed by the

revisional authorities are also set aside and the matter is remanded back to the

Sales Tax Officer to redo the matter in accordance with law after affording an

opportunity of hearing to the assessee.

iv) The assessee is also at liberty to take up all such contentions which

are available to him including certain contentions canvassed before this

W.A.No.2348/2002 6

Court.

Consequently, C.M.P.No.6176 of 2002 is dismissed.

Ordered accordingly.

(H.L.DATTU)

CHIEF JUSTICE

(K.T.SANKARAN)

JUDGE

vns/DK