IN THE HIGH COURT OF KERALA AT ERNAKULAM
ST Rev No. 12 of 2003()
1. STATE OF KERALA REPRESENTED BY DEPUTY
... Petitioner
Vs
1. M/S TOP CONSTRUCTIONS, KOTTARAKKARA.
... Respondent
For Petitioner :SR.GOVT.PLEADER
For Respondent :SRI.S.ABDUL RAZZAK
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.
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S.T.Rev.Nos.12 of 2003, 45 of 2003,
63 of 2003 & 79 of 2003
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Dated, this the 26th day of July, 2007
ORDER
H.L.Dattu,C.J.
Since common questions of fact and law are involved in these
revision petitions, they are clubbed together, heard and disposed of by this
common order.
(2) These revision petitions are filed by the State Government
being aggrieved by the orders passed by the Kerala Sales Tax Appellate
Tribunal, Thiruvananthapuram in T.A.Nos.276, 277, 278 and 279 of 2001
dated 30th November, 2001. By the impugned order, the Tribunal has allowed
the assessee’s appeals and has set aside the orders passed by the Deputy
Commissioner of Commercial Taxes in exercise of his powers under Section
35 of the Kerala General Sales Tax Act.
(3) The respondent in these revision petitions is an assessee
registered under the provisions of the Kerala General Sales Tax Act
(‘K.G.S.T.Act” for short) and Central Sales Tax Act (“C.S.T.Act” for short). He
is a contractor. For the assessment years 1994-95 and 1995-96, the assessing
authority has completed the assessment on 25.2.1999, for the assessment
year 1996-97 on 20.7.1999 and for the assessment year 1997-98 on
28.2.2000.
(4) The Deputy Commissioner of Commercial Taxes being of
the opinion that the orders of assessment passed by the assessing authority is
prejudicial to the interest of the Revenue, had initiated suo motu revisional
S.T.Rev.12/2003 &
connected cases – 2 –
proceedings by issuing show cause notice to the assessee. The assessee has
filed a reply. After considering the reply so filed by the assessee, the revisional
authority has revised the orders of assessment passed by the assessing
authority for the aforesaid assessment years on 25.06.2001.
(5) Aggrieved by the revisional orders so passed by the Deputy
Commissioner of Commercial Taxes, the assessee has carried the matter by
way of first appeal before the Tribunal in T.A.Nos.276/2001, 277/2001,
278/2001 and 279/2001 for the assessment years 1994-95, 1995-96, 1996-97
and 1997-98 respectively. The Tribunal by its common order dated 30th
November, 2001 has allowed the appeals and thereafter set aside the orders
passed by the Deputy Commissioner of Commercial Taxes dated 25.6.2001.
(6) The State Government being aggrieved by the orders
passed by the Tribunal has filed these revision petitions under Section 41 of
the Act. The questions of law raised by the Revenue for our consideration and
decision are as follows:
“(a) Is not the Tribunal in error in holding that the finding of
the First Appellate authority that materials supplied by
Government Departments are taxable is wrong?
(b) Is not the Tribunal in error in not considering the fact
that the appellant had not adduced any evidence to prove that
the materials supplied by the Government Departments have
suffered tax?”
(7) At this stage, it may be necessary to notice yet another order
passed by the Commissioner of Commercial Taxes, Thiruvananthapuram in
exercise of his powers under Section 37 of the Act on 21.2.2003. By the said
order, the Commissioner has set aside the orders passed by the assessing
authority dated 25.2.1999, 20.7.10999 and 28.2.2000 and also the orders
passed by the revisional authority dated 25.6.2001. The order passed by the
S.T.Rev.12/2003 &
connected cases – 3 –
Commissioner of Commercial Taxes dated 21.2.2003 is as under:
“There was no evidence produced for the cost of
departmental materials supplied. Therefore the exemption
allowed in this respect is wrong. The assessments are to be
completed afresh considering the purchase of materials
transferred in the execution of Works Contract, for which a
detailed verification of accounts are required. The assessments
completed for the years 1994-95 to 97-98 and the revision
orders mentioned are therefore prejudicial to revenue. All the
contentions raised in the reply does not deserve any merit at
all. The reply is therefore devoid of merit. As there is escaped
turnover for all the years from 1994-95 to 97-98, the
assessment orders as well as the revision order passed by the
Deputy Commissioner, Kollam u/s.35 of the K.G.S.T.Act 1963
are set aside and the cases are remitted back to the assessing
authority for fresh disposal according to law. The assessing
authority is directed to finalise the assessments for all the years
within 3 months from the date of receipt of this order”.
(8) Since the entire assessment orders have been set aside by
the Commissioner of Commercial Taxes in exercise of his powers under
Section 37 of the Act, at this stage, in our opinion, we need not have answered
the questions of law raised by the Revenue for our consideration and decision
since the said questions of law are only academic in nature. In that view of the
matter, without going into the other details of the case, these revision petitions
are disposed of in view of the orders passed by the Commissioner of
Commercial Taxes in exercise of his powers under Section 37 of the Act dated
21.2.2003.
Ordered accordingly.
H.L.Dattu
Chief Justice
K.T.Sankaran
Judge
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