IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT:- THE HONOURABLE THE CHIEF JUSTICE MR.H.L.DATTU & THE HONOURABLE MR. JUSTICE A.K.BASHEER THURSDAY, THE 13TH NOVEMBER 2008 / 22ND KARTHIKA 1930 S.T.Rev.No.447 of 2005 ---------------------------------------- T.A.NO.229/2002 OF THE KERALA AGRICULTURAL INCOME TAX AND SALES TAX APPELLATE TRIBUNAL, ADDITIONAL BENCH, PALAKKAD. (ORDER DATED 30.01.2003 - ASSESSMENT YEAR 1996-1997) .................... REVISION PETITIONER/RESPONDENT/REVENUE:- ------------------------------------------------------------------------ STATE OF KERALA, REPRESENTED BY JOINT COMMISSIONER (LAW), COMMERCIAL TAXES, ERNAKULAM. BY GOVERNMENT PLEADER RESPONDENT/APPELLANT/ASSESSEE:- --------------------------------------------------------- P.SUNIL KUMAR, CIVIL CONTRACTOR, LEELA NIVAS, MAMMIYOOR, THRISSUR. BY ADV. SRI.E.P.GOVINDAN. THIS SALES TAX REVISION HAVING BEEN FINALLY HEARD ON 13/11/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:- H.L.Dattu,C.J. & A.K.Basheer,J. -------------------------------------------- S.T.Rev.No.447 of 2005 -------------------------------------------- Dated, this the 13th November, 2008 ORDER H.L.Dattu,C.J. Revenue's revision petition, being aggrieved by the orders passed by the Kerala Agricultural Income Tax and Sales Tax Appellate Tribunal, Additional Bench, Palakkad in T.A.No.229 of 2002 dated 30.1.2003. (2) The assessee is a civil contractor. For the relevant assessment year, the nature of work executed by the petitioner was demolition of compound wall, construction of well, construction of water tanks, etc. (3) The assessee is also a registered dealer under the Kerala General Sales Tax Act, 1963 (“Act” for short). He had filed an application before the assessing authority to permit him to pay the tax at the compounded rate, under Sections 7(7) and 7(7A) of the Act. Pursuant to the request so made, the assessing authority had permitted the petitioner to pay the tax at the compounded rate under Section 7(7) of the Act. (4) The assessee had filed its annual returns in Form No.9 along with the necessary documents before the assessing authority for the STRev.447/2005. 2 - assessment year in question. The assessing authority has completed the assessments under Section 7(7) of the Act and has levied tax on the taxable turnover of the dealer at 2%. (5) May be realizing that a particular taxable turnover of the dealer has escaped assessment, the assessing authority had issued a notice under Section 19 of the Act, proposing to reassess the dealer. Though it was objected to by the assessee, the assessing authority has completed the reassessments under Section 19 of the Act and has brought the taxable turnover of the dealer under Section 7(7A) of the Act and has levied tax at the rate of 5% on the taxable turnover of the dealer. (6) The assessee was unsuccessful before the first appellate authority. That is how he had carried the matter in second appeal before the Tribunal in T.A.No.229 of 2002. (7) The Tribunal has allowed the assessee's appeal, being of the view, that, the contract work that was carried out by the dealer is in the nature of the civil works and, therefore, the compounding has to be done by the assessing authority only under Section 7(7) of the Act and the rate of tax payable is only at 2%. (8) Calling in question the correctness or otherwise of the said order passed by the Tribunal, the Revenue is before us in this revision petition. STRev.447/2005. 3 - (9) The Revenue has framed the following question of law for our consideration and decision. It is as under: “Whether on the facts and in the circumstances of the case, the Tribunal is justified in holding that the construction of compound wall, well, earthern drain, etc., would fall under civil work as mentioned in section 7(7) of the K.G.S.T.Act?” (10) Sri.Muhammed Rafiq, learned counsel appearing for the Revenue would submit, that, considering the nature of work that was awarded and executed by the assessee, it cannot be brought within the definition of “civil works” and, therefore, the Tribunal was not justified in directing the assessing authority to modify the reassessment passed under Section 19 of the Act and grant the benefit of compounding by levying tax only at the rate of 2% on the taxable turnover of the dealer. In aid of his submission, the learned counsel relies on the observations made by a Division Bench of this Court in the case of Abdul Majeed v. State of Kerala [2006 (3) KLT 548]. In the said decision, this Court has observed that: “The items mentioned in Section 7(7) are specific, such as building, bridges, roads, railway tracks, walls, including repair or maintenance of such civil works which do not take in drains or culverts. Court is not justified in adding items which the legislature in its wisdom has not included”. (11) Sri.E.P.Govindan, learned counsel appearing for the respondent-assessee, would submit, that, having permitted the assessee to STRev.447/2005. 4 - pay the tax at the compounded rate under Section 7(7) of the Act and without modifying that order, the assessing authority could not have passed a reassessment order under Section 19 of the Act. (12) The argument canvassed by the learned counsel looks attractive, but that argument was not canvassed by the assessee, either before the assessing authority or before the first appellate authority or before the Appellate Tribunal. What was not pleaded/urged and argued, cannot be permitted to be urged for the first time in a revision petition. Therefore, we cannot accept the contention of Sri.E.P.Govindan, the learned counsel appearing for the assessee. (13) Now, what remains to be considered by us is, whether the nature of work that was awarded to and executed by the petitioner is a “civil work” as defined under Section 7(7) of the Act. If, for any reason, the said contract work does not fall under Section 7(7) of the Act, then it would only fall under Section 7(7A) of the Act. (14) The assessing authority, in its reassessment order, has noticed the contract that was awarded to the assessee. They are - removing of compound wall, construction of well, construction of water tank, etc. The assessing authority, at the time of passing reassessment order, is of the opinion, that, the work that was executed by the assessee is not in the nature of civil works and, therefore, the order passed by him earlier requires to be STRev.447/2005. 5 - annulled and a fresh order requires to be passed under Section 7(7A) of the Act, thereby levying 5% tax on the taxable turnover of the dealer. This order was questioned by the assessee before the first appellate authority, where he was not successful and before the Tribunal, the assessee's contention was that the contract that was awarded to the assessee is in the nature of civil work and, therefore, the assessing authority could not have reassessed the dealer under Section 7(7A) of the Act. The Tribunal, after referring to the meaning of the expression “civil works”, holds, that removing of compound wall, construction of well, construction of water tank, etc. would also come within the purview of the definition of “civil works” and, therefore, has granted the relief to the assessee by allowing the appeal filed by the assessee. (15) In view of what has been stated by a Division Bench of this Court in Abdul Majeed's case (supra), wherein the expression “civil works” has been explained, removing of a compound wall, construction of well, construction of water tank, would not fall within the definition of “civil works” and, therefore, the assessing authority was justified in passing the order under Section 19 of the Act by revising his earlier order passed for the assessment year 1996-97 and directing the petitioner to pay tax at the rate of 5% on the taxable turnover. (16) In view of the above discussion, the revision petition filed by the Revenue requires to be allowed and the orders passed by the Tribunal STRev.447/2005. 6 - requires to be annulled. (17) Accordingly, we pass the following: Order (i) The revision petition is allowed. (ii) The order passed by the Tribunal in T.A.No.229 of 2002 dated 30.01.2003 is set aside. (iii) The reassessment orders passed by the assessing authority under Section 19 of the Act, as confirmed by the first appellate authority in S.T.A.No.II-225/2001 dated 30.1.2002, is sustained. Ordered accordingly. H.L.Dattu Chief Justice A.K.Basheer vku/dk Judge