IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON FRIDAY, THE 17TH SEPTEMBER 2010 / 26TH BHADRA 1932 WP(C).No. 24764 of 2003(W) ---------------------------------------- PETITIONER(S): ----------------------- TECHNO EQUIP COMPANY, 54, JOLLY MAKER CHAMBERS NO.2, 225, NARIMAN POINT, BOMBAY, REPRESENTED BY ITS RESIDENT ENGINEER, SHRI K.R.K. PRASAD. BY ADV. SRI.DEEPU THANKAN, SMT.DEEPA DEEPU THANKAN. RESPONDENT(S): -------------------------- 1. SALES TAX OFFICER, OFFICE OF THE DEPUTY COMMISSIONER, THEVARA, ERNAKULAM. 2. COCHIN REFINERIES LTD., AMBALA MUGAL-682 302, ERNAKULAM DIST. 3. THE COLLECTOR, OLD CUSTOM HOUSE, BALLARD PIER, BOMBAY. R1 BY GOVT. PLEADER MR.K.P. PRADEEP. R2 BY ADV. SRI.E.K.NANDAKUMAR, SRI.A.K.JAYASANKAR NAMBIAR, SMT.PRIYA MAHESH, SMT.PRIYA MANJOORAN. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17/09/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 24764/2008-W APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE ORDER OF THE APPELLATE AUTHORITY DATED 26/02/2001. EXT.P2: COPY OF THE ASSESSMENT ORDER FOR THE YEAR 1997-98 DATED 05/10/2002. EXT.P3: COPY OF THE DEMAND NOTICE DATED NIL. EXT.P4: COPY OF THE ORDER OF THE APPELLATE AUTHORITY DATED 31/01/2003. EXT.P5: COPY OF THE ENGLISH TRANSLATION OF DEMAND NOTICE DATED 30/01/2003. EXT.P6: COPY OF THE JUDGMENT OF THE HIGH COURT OF BOMBAY IN WP.1120/03 DATED 11/06/2003. RESPONDENT'S EXHIBITS: NIL //TRUE COPY// P.A. TO JUDGE rs. P.R. RAMACHANDRA MENON J. ~~~~~~~~~~~~~~~~~~~~~~~ W.P (C) No. 24764 OF 2003 ~~~~~~~~~~~~~~~~~~~~~~~ Dated, this the 17th day of September, 2010 JUDGMENT The grievance of the petitioner is that, in spite of the specific direction given by the appellate authority vide Ext. P4, directing the assessing authority to pursue the course with regard to the quantification of the work of the petitioner under entry number 22 of the fourth schedule, no consequential proceedings have been taken to give effect to the said order and that the petitioner is confronted with the coercive steps which made the petitioner to approach this Court. 2. The petitioner is a contractor, who was awarded with certain works by the second respondent and by virtue of the specific terms of the agreement between the petitioner and the second respondent, the tax payable in respect of the said work was liable to be deducted by the second respondent from the amount payable to the petitioner in respect of the works done at the specified rates. The learned counsel for the petitioner submits that the work was awarded in the year 1994 and the same was over by 1999 and as agreed in between, various amounts were deducted from the amount payable to the petitioner in respect of the W.P. (C) No. 24764 of 2003 2 different years; that there was no failure in this regard and hence that the petitioner cannot be mulcted with any further liability. 3. It is contended that, instead of classifying the item under 'entry 22' of the IVth schedule; the same was categorized by the assessing authority under 'entry 11' of the very same schedule, thus applying a higher rate of tax i.e. 10% instead of 6 %. Referring to Ext. P1 appellate order in respect of the assessment year 1995 - '96, the learned counsel submits the liability ought to have been quantified only under 'entry 22' of the IVth schedule, at a lesser rate i.e. 6 %. In respect of the subsequent assessment year, i.e. 1997-98, the assessing authority sought to fix a higher rate i.e. 10% placing the work under item 11 of the IVth schedule, which in turn was subjected to challenge by filing appeal, which culminated in Ext. P5 order, passed by the appellate authority. Taking note of the course of pursued in the earlier assessment year (1995-'96), the appellate authority directed the assessing authority to modify the assessment order in respect of the assessment year 1996-'97 as well, despite which no consequential orders have been passed by the assessing authority, reducing the rate of tax to 6 %, classifying the item under entry 22 of the IVth schedule, which is the actual grievance projected in this Writ Petition. 4. The learned Government Pleader appearing for the respondents submits that, there is absolutely no dispute with regard to the direction W.P. (C) No. 24764 of 2003 3 given by the appellate authority vide Ext. P4 in respect of the assessment year 1997-'98 and that the work performed by the petitioner could very well be classified under 'entry 22' of the IVth schedule. But, it is also pointed of that w.e.f. 01.04.1997, the rate of tax originally prescribed as '6 %' under the entry 22 of the IVth schedule was amended and enhanced to '10%', as under entry 11 of the IVth schedule. This being the position, eventhough the work of the petitioner is re-classified under entry 22 of the IVth schedule, there cannot be any deviation with regard to the actual figures, submits the learned Government Pleader. 5. After hearing both the sides, this Court finds that the right of the petitioner to have his work classified and categorized under entry 22 of the IVth schedule and the challenge raised in respect of 1997-'98 stand upheld and confirmed, since Ext. P4 order has answered the question against the revenue, as cancelled in paragraph 3 of the counter affidavit. However, taking note of the specific submission made by the learned Government Pleader that, by virtue of the amendment brought into force w.e.f. 01.04.1997, enhancing the rate of tax from 6 % to 10 %, also under entry 22 of the IVth schedule, Ext. P4 order passed by the appellate authority cannot tilt the balance with regard to the actual quantum of the liability to be satisfied by the petitioner. W.P. (C) No. 24764 of 2003 4 6. It is brought to the notice of this Court that the Government has declared an 'Amnesty Scheme', which is stated as valid till 31.12.2010. It will be open for the petitioner to avail the said benefit by filing necessary application in this regard. The first respondent shall intimate the petitioner as to the actual liability as on date within 'two weeks' from the date of receipt of a copy of this judgment, so as to enable the petitioner to pursue further steps in this regard. Coercive steps, if any shall be kept in abeyance for the time being, till the matter is considered in terms of the Scheme as aforesaid. P. R. RAMACHANDRA MENON, JUDGE kmd