IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON MONDAY, THE 25TH MAY 2009 / 4TH JYAISHTA 1931 WP(C).No. 30765 of 2005(K) -------------------------------------- PETITIONER(S): ---------------------- C.R. MOHANAN, S/O. RAGHAVAN, PALAYIKUDIYIL, THOKKUPARA, IDUKKY. BY ADV. SRI.P.P.JACOB RESPONDENT(S): ------------------------ 1. SALES TAX OFFICER, OFFICE OF THE DEPUTY COMMISSIONER, COMMERCIAL TAX, KATTAPPANA, IDUKKY. 2. BLOCK DEVELOPMENT OFFICER/SECRETARY ADIMALY BLOCK PANCHAYATH, IDUKKY. 3. COMMISSIONER OF COMMERCIAL TAXES, TRIVANDRUM (IMPLEADED SUO MOTO AS ADDL.R3). BY ADV.SRI.C.K.GOVINDAN, GOVERNMENT PLEADER FOR R1, R2 & ADDL.R3. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25/05/2009. THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C).No. 30765 of 2005 APPENDIX PETITIONER'S EXHIBITS : EXT.P1:COPY OF THE AGREEMENT EXECUTED BY PETITIONER WITH THE RESPONDENTS REGARDING THE NOMINEE WORK. EXT.P2:COPY OF THE CIRCULAR ISSUED BY DEPUTY COMMISSIONER (G) COMMERCIAL TAX DATED 16.8.05. EXT.P3:COPY OF CHALAN SHOWING THE REMITTANCE OF TAX DATED 30.9.05. EXT.P4:COPY OF THE LETTER ISSUED BY THE SECOND RESPONDENT WITH DECLARATION AS DIRECTED BY THE COURT DATED 2.7.07. //TRUE COPY// P.A.TO JUDGE. ami. P.R.RAMACHANDRA MENON, J. --------------------------- W.P.(C) No.30765 OF 2005 -------------------------- Dated this the 25th day of May, 2009 J U D G M E N T ~~~~~~~~~~~ The petitioner is stated as the elected convenor for executing the nominated work in the Adimaly Block Panchayath. It is the case of the petitioner that as per Ext.P2 circular, since the gross amount of the work involved was less than Rs.10 lakhs, the tax liability was only to an extent of 4 % ; whereas @ 12.5 % has been recovered by the 2nd respondent, which is stated as not correct. 2. No counter affidavit has been filed by the 2nd respondent. The statement filed on behalf of the 1st respondent seeks to sustain the appropriation of the tax @ 12.5 %. The learned Government pleader appearing for the 1st respondent submits that the petitioner was awarded the work only as an individual and since he could be regarded only as a contractor, admittedly having no registration, he was liable to pay the tax @ 12.5 % and not @ 4 %, in view of the specific stipulation in the W.P.(C) No.30765 OF 2005 2 first paragraph of Ext.P2 (last sentence). This is strongly rebutted by the learned counsel for the petitioner stating that, the petitioner was the President of the Parent-Teachers` Association of the concerned school where the maintenance works, were to be effected in a time-bound manner under the particular scheme and utilising the funds allotted. According to him, since he was neither a contractor, nor a dealer, he was not liable to take any registration under the relevant portions of law and that he was liable to pay tax only @ 4 %, the work being of the value less than Rs.10 lakhs, as specified in Ext.P2. 3. For resolving the issue it is found fit and proper to have the matter considered by higher level authorities in the Department/Government; taking note of the particular nature of work assigned and undertaken, unlike the normal work contracts. This being the position, the petitioner is hereby directed to approach the Commissioner of Commercial Taxes, Trivandrum, by filing appropriate representation, projecting his grievance, also by producing all the requisite materials so as to W.P.(C) No.30765 OF 2005 3 substantiate his claim to avail the lower rate of tax @ 4% and to have the excess amount refunded. If any such petition is filed within one month from today, the Commissioner shall consider the same and pass appropriate orders in accordance with law, after giving an opportunity of hearing to the petitioner, which exercise shall be finalized as expeditiously as possible, at any rate within four months thereafter. 4. For the purpose of enabling the Commissioner to comply with the direction as above, the Commissioner of Commercial Taxes, Thiruvananthapuram, is impleaded `suo moto' as the additional 3rd respondent in this writ petition and the learned pleader has taken notice on behalf of the additional 3rd respondent. The writ petition is disposed of accordingly. P.R.RAMACHANDRA MENON, JUDGE an.