IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS TUESDAY, THE 3RD MAY 2011 / 13TH VAISAKHA 1933 WA.No. 551 of 2011 AGAINST THE ORDER Dated 08/04/2011 IN RP.217/2011IN W.P.(C) NO.5520/2011 APPELLANT(S): REVIEW PETITIONER/PETITIONER ------------------------------------------ M/S.JOHNSON LIFTS PRIVATE LIMITED 38/352, KARITHALA ROAD, NEAR CHOICE TOWERS, MANORAMA JUNCTION, COCHIN - 682 016 REPRESENTED BY SHRI.JOS P GEO, AUTHORIZED SIGNATORY. BY ADV. SRI.BECHU KURIAN THOMAS RESPONDENTS: RESPONDENTS/RESPONDENTS -------------------------------------- 1. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, COMMERCIAL TAXES, SECRETARIAT, TRIVANDRUM - 1 2. ASSISTANT COMMISSIONER - 2 (WORKS CONTRACT), OFFICE OF THE DEPUTY COMMISSIONER COMMERCIAL TAXES DEPARTMENT, ERNAKULAM - 682015. 3. COMMERCIAL TAX OFFICER (W.C) OFFICE OF THE DEPUTY COMMISSIONER COMMERCIAL TAXES DEPARTMENT, ERNAKULAM - 682015. GOVERNMENT PLEADER SRI.BIJOY CHANDRAN THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 03/05/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.T.SANKARAN & M.L.JOSEPH FRANCIS, JJ. ------------------------------------------------------------------ W.A. NO. 551 OF 2011 ------------------------------------------------------------------ Dated this the 3rd day of May, 2011 JUDGMENT K.T.Sankaran, J. The Writ Appeal is filed against the interim order dated 8.4.2011 in R.P.No.217 of 2011 in W.P.(C) No.5520 of 2011. 2. In the Writ Petition filed by the petitioner, the contention raised is that the erection of lift amounts to a works contract attracting only 5% sales tax on the turnover. In the assessment order, it was held that the petitioner is liable to pay 20% sales tax on the turnover. It is submitted by the learned counsel for the petitioner that the assessing authority arrived at the finding on the basis of a decision of the Supreme Court in State of A.P. v. Kone Elevators (India) Ltd. ((2005) 3 SCC 389). Ext.P2 is produced to show that the Supreme Court referred the matter to a Constitution Bench in view of the conflict of decisions in two other cases with ((2005) 3 SCC 389). It is submitted that the matter is now pending before the Constitution Bench of the Supreme Court. W.A. NO.551 OF 2011 :: 2 :: 3. In the Writ Petition, the learned single Judge granted an interim order on 23.2.2011, granting stay on condition of deposit of 20% of the sales tax on 85% of the sales turnover in lift. The petitioner filed R.P.No.217 of 2011 seeking to review the order dated 23.2.2011. In the Review Petition, the learned single Judge passed the following interim order dated 8.4.2011: “Government Pleader seeks time to file objection. Meanwhile interim stay granted on 23.2.2011 will continue till 25.5.2011, subject to, condition of the petitioner remitting 10% of the Tax on 85% of sale turnover within a period of one month from today.” 4. The Review Petition is posted to 25.5.2011 before the learned single Judge. The learned single Judge will be taking a decision as to whether the order dated 23.2.2011 is liable to be reviewed or not. In view of the peculiar facts and circumstances of the case, we do not think that till the disposal of the Review Petition, the direction to deposit, as a condition for stay, need be insisted, particularly since the matter is posted before the learned single Judge on 25.5.2011. To that extent, the order dated 8.4.2011 is modified. W.A. NO.551 OF 2011 :: 3 :: The Writ Appeal is disposed of as above. (K.T.SANKARAN) Judge (M.L.JOSEPH FRANCIS) Judge ahz/