IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON FRIDAY, THE 21ST MAY 2010 / 31ST VAISAKHA 1932 WP(C).No. 15557 of 2010(T) -------------------------- PETITIONER: --------------- THE KERALA WATER AUTHORITY, REPRESENTED BY ITS EXECUTIVE ENGINEER, PROJECT DIVISION, ADOOR. BY ADV. MR. V.CHITAMBARESH, SENIOR ADVOCATE MR. T.C.SURESH MENON MR. JIBU P THOMAS MR. P.S.APPU MR. C.A.ANOOP RESPONDENTS: --------------- 1. THE INSPECTING ASSISTANT COMMISSIONER (TEAM HEAD), FAST TRACK ADALATH TEAM, COMMERCIAL TAXES, PATHANAMTHITTA. 2. THE TAHSILDAR (R.R), PATHANAMTHITTA. BY GOVERNMENT PLEADER MR. C.K. GOVINDAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 21/05/2010 ALONG WITH WP (C) 15605 OF 2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R. RAMACHANDRA MENON J. ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ W.P. (C) Nos. 15557 & 15605 of 2010 ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ Dated, this the 21st day of May, 2010 JUDGMENT The grievance of the petitioners in both these cases is rather similar and hence both the cases are heard and considered together. The petitioner in the first case is the Project Division, Adoor of Kerala Water Authority, where as the petitioner in other case is the similar division of Pathanamthitta. The case of the petitioners is that till 1.4.2000, the concerned divisions were not Project Dealers and they got registration by virtue of the Statute and policy, only with effect from 1.4.2000. Till, such time the assessment was made on the basis of centralized assessment as Water Authority at Trivandrum. In spite of this, the first respondent herein conducted the assessment in respect of period from 1993-'94 up to 2004 - 05 and Ext.P1 orders have been issued, fixing huge liability upon the petitioner and requiring to satisfy the same, which hence is under challenge in this Writ Petition. 2. The learned counsel for the petitioners submits that, the course pursued by the first respondent is not correct or sustainable. Prior to the relevant period i.e 1.4.00, there was absolutely no need to take registration as a dealer. If at all any liability had to be fixed in connection with the prior years, the matter could have been answered effectively only by the centralized authority at Trivandrum, who was the W.P. (C) Nos. 15557 & 15605 of 2010 : 2 : assessee before the concerned respondent, who issued Ext.P2 certificate. The learned counsel for the petitioners submits that, since no dealers or assessee till 1.4.00, there was no need or necessity to have maintained the books of accounts and that the petitioners are not in a position to submit any facts and figures relating to the relevant period. Despite Ext.P3 preferred before the first respondent, the same was not considered by the first respondent, who was rather enthusiastic to have jumped over to the conclusion, while passing Ext.P1, fixing huge liability upon the petitioner, which hence is under challenge. 3. Heard the learned Government Pleader as well. 4. On going through the contents of the Writ Petition and other materials on record, it is very much evident that the contention raised by the petitioners in both these cases is having considerable force, particularly when issuance of Ext.P2 certificate by the concerned authority Trivandrum, who made. centralized assessment, has not disputed it any where. The circumstances when Ext.P1 order happened to be passed by the first respondent is very much discernible from Ext.P1 order itself. It is stated that, the C forms were being issued to the concerned division of the petitioner so as to procure various materials and the petitioners used to procure the materials on the basis of such C forms. While the works to be performed were given W.P. (C) Nos. 15557 & 15605 of 2010 : 3 : on contract to various persons, cost of materials was being stated against the bill of the contractor at the relevant time. This by itself shows that there was 'sale' in such exercise and accordingly, it was liable to be taxed. Since under the amended Sales Tax Rules, Kerala Water Authority cannot have the right to issue 'C' forms, the Kerala Water Authority surrendered the counterfoil of used C forms and unused C forms and thereafter, during the course of audit, it was pointed out even prior to obtaining registration (that is, for the period prior to 1.4.00) different quantities of materials had been purchased and hence that there was escape of turnover, which was liable to be assessed and accordingly, the assessment was finalized by the first respondent. Be that as it may, the matter is finalized by way of centralized assessment, as the purchasing authority was none other than the 'Water Authority' having central office at Trivandrum. The assessment was finalized by the concerned assessing authority at Trivandrum. It was in the said circumstances, that the petitioner has come with the statement of objection, as borne by Ext.P3, before the first respondent stating that, there is obvious 'duplication' with regard to the liability fixed on the petitioners. It is very much evident that, by passing Ext.P1 orders, first respondent cast huge liability upon the petitioners without exempting the period prior to 2000, as it is stated as conceded as borne by Ext.P2. W.P. (C) Nos. 15557 & 15605 of 2010 : 4 : 5. Considering the facts and circumstances of the case, this Court finds that these matters are to be reconsidered by the first respondent, particularly on the points raised in Ext.P3 application filed under Section 43 of the Act to rectify the mistake. In the above circumstances, the first respondent is directed to consider Ext.P3 application preferred by the petitioners in both the cases, in accordance with law, as expeditiously as possible, at any rate, with six weeks from the date of receipt of a copy of this judgment. Since the dispute raised by the petitioners in Ext,P3 application for rectification, is only confined to duplication of amount with respect to the period from 1993-'94 till 1999-'00, the recovery proceedings, if any, in respect of the said assessment years shall be kept in abeyance till final orders are passed on Ext.P3 as aforesaid. It is made clear that no stay is granted with respect to the subsequent period. The Writ Petitions are disposed of. P. R. RAMACHANDRA MENON, JUDGE kmd