IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM MONDAY, THE 19TH JANUARY 2009 / 29TH POUSHA 1930 ST.Rev..No. 271 of 2007() ------------------------- TA.285/2003 of STAT ADDL.BENCH, KOTTAYAM .................... REVISION PETITIONER/APPELLANT/ASSESSEE: ----------------------------------------------------------- K. KURIAN, EDAYADIMALAYIL, PEROOR POST, KOTTAYAM. BY ADV. SRI.S.ANIL KUMAR (TRIVANDRUM) SRI.HARIHARAN NAIR RESPONDENT(S): RESPONDENT/REVENUE: ---------------------------------- STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, TAXES DEPARTMENT, SECRETARIAT,THIRUVANANTHAPURAM. BY G.P. SRI. TEKCHAND THIS SALES TAX REVISION HAVING BEEN FINALLY HEARD ON 19/01/2009, ALONG WITH STRV NOS. 278, 290 AND 302/2007 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C .N. RAMACHANDRAN NAIR & C.K. ABDUL REHIM JJ. ------------------------------------------------------ S.T. Rev. Nos.271,278, 290 & 302 OF 2007 ------------------------------------------------------- Dated this the 19th day of January, 2009 JUDGMENT Ramachandran Nair,J. Connected Revision cases are filed by the petitioner who was a contractor who executed pipe laying work for Kerala Water Authority. Turnover was assessed at the rate of 12.5 per cent treating it as work involving supply of water supply equipments, namely, pipe. The contention of the petitioner is that materials like, pipe, cement, steel, etc., required for the work were supplied by the Kerala Water Authority and petitioner was engaged in making out trenches and laying pipes in accordance with work awarded. We find force in this contention because department has no case that pipes and other required items for the work were supplied by the petitioner. In fact the contract clearly shows that pipes were supplied by the Kerala Water Authority the awarder of the contract. In the case of another contractor, who executed work for the Kerala Water Authority, this Court in the decision in PHILIPOSE V. STATE OF KERALA, 126 STC 210 held that the contract attracts tax at 6 per cent only. We are of the view that the decision above referred squarely applies to the facts of this case 2 also and there is no justification for the Tribunal to reverse the order of the first appellate authority in favour of the petitioner. In the absence of provisions in the contract or evidence about supply of pipe and other water supply equipments by the petitioner, the Tribunal was not justified in restoring the assessment made at the rate of 12.5 per cent. The assessments involved are for the years 1992-93 to 1995-96. At this distance of time we do not think there is any scope for remaning the matter for fresh adjudication. However, going by the facts on record and following our earlier judgment, we feel revisions have to be only allowed. We therefore allow the revision petitions by quashing the order of the Tribunal and restoring that of the first appellate authority. However, we make it clear that it is open to the assessing officer to verify the reimbursement of tax paid by the Kerala Water Authority to the petitioner, and if he has received tax in excess of the rate of tax assessed, it is for the officer to forfeit such tax collected over and above the tax assessed under Section 46A(1) of the Act. (C.N.RAMACHANDRAN NAIR) Judge. (C.K. ABDUL REHIM) Judge. kk 3