IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM TUESDAY, THE 22ND MARCH 2011 / 1ST CHAITHRA 1933 WP(C).No. 3527 of 2011(M) -------------------------------------- PETITIONER(S): ------------------------ M/S.CORAL REWINDING INDIA PRIVATE LTD, 150, VILLARASAMPATTI NAAL ROAD, NASIYANUR ROAD, VILLARASAMPATTI P.O., ERODE - 638 107, TAMILNADU, REPRESENTED BY ITS MANAGING DIRECTOR, P.RAJARAJAN. BY ADV. SRI.N.MURALEEDHARAN NAIR SMT.K.HYMAVATHY RESPONDENT(S): --------------------------- 1. THE COMMERCIAL TAX OFFICER (WC), DEPARTMENT OF COMMERCIAL TAXES, PALAKKAD - 678 001 2. CHIEF ENGINEER (GENERATION) KSEB, MOOLAMATTOM P.O., IDUKKI DISTRICT - 685 589. R1 BY GOVERNMENT PLEADER SRI.V.K.SHAMSUDHEEN R2 BY ADV. SRI.P.P.THAJUDEEN, SC, K.S.E.B THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 22/03/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts C.K.ABDUL REHIM, J. ------------------------------------------- W.P.(C).No.3527 of 2011 ------------------------------------------- Dated this the 22nd day of March, 2011 J U D G M E N T ---------------------- Issue involved in this writ petition pertains to refund of the amount of tax deducted at source by the 2nd respondent, which is evident from Ext.P4 certificate. According to the petitioner, he was doing only repair works of machinery and equipments in 'Hydro Electric Projects' owned by the 2nd respondent and such works will not attract any liability for payment of tax under Section 6(1) of the Kerala Value Added Tax Act, 2003 (KVAT Act). It is stated that the above aspect was clarified through an order of the Kerala Value Added Tax Appellate Tribunal, while disposing an appeal pertaining to assessment completed for the previous year of 2005-06, and on the basis of which refund was already effected by the assessing authority. The petitioner had obtained Ext.P3 certificate from the 1st respondent to the effect that there is no transfer of property involved in execution of the works contract undertaken and hence the petitioner is not liable for payment of tax under the works contract. But, in spite of production of such certificate, the 2nd respondent had deducted tax from the W.P.(C).3527/11 -2- contract bills, as evidenced from Ext.P4 certificate. Therefore the petitioner claimed refund as per Ext.P5. 2. When the 1st respondent failed to consider and dispose of Ext.P5 application, the petitioner had approached this court on an earlier occasion, by filing WP(C).29023/2010. In Ext.P6 judgment this court directed the 1st respondent to consider and pass orders on Ext.P5 at the earliest, after affording an opportunity of hearing to the petitioner, at any rate within one month from the date of receipt of a copy of the judgment. Ext.P7 is the proceedings issued by the 1st respondent in compliance with the directions contained in Ext.P6. The assessing authority observed that,in the original return filed, the petitioner had admitted that no contract amount was received and no tax was paid during the year 2009-10. But a revised return showing tax deduction at source to the extent of Rs.9,09,898/- was submitted. The assessing authority observed that the petitioner had failed to produce the certificate in Form 20F evidencing payment of tax, along with the return and there was no details furnished in the revised return regarding the contract amounts received. On the basis of such findings the refund application was rejected. 3. It is pertinent to note that, in the earlier round of litigation itself the petitioner had produced Ext.P4 certificate W.P.(C).3527/11 -3- issued by the 2nd respondent in Form 20F, from which it is evident that there was deduction of tax at source to the extent of Rs.9,08,875/-. Further, in the judgment in Ext.P6 this court had taken note of the availability of the TDS certificate issued by the 2nd respondent, evidencing deduction of tax at source. Hence it could not be presumed that such certificate was not available or that the petitioner had failed to produce the certificate in spite of any demand made in this regard. 4. In a statement filed on behalf of the 1st respondent it is mentioned that in the original return which was electronically filed, receipt of any contract amount nor any deduction of tax was disclosed. However, it is conceded that, pursuant to a notice issued proposing to reject the return, the petitioner had filed revised return, manually, showing tax deducted at source. But it is stated that in the revised return also the details regarding the contract work undertaken and the amount received were not declared and hence the petitioner was not eligible for refund of the amount. Further contention of the 1st respondent is that Ext.P7 order through which the refund was rejected, is an appealable order and the matter need not be entertained in this writ petition. 5. Considering the factual aspects, it is evident that the 2nd respondent had effected deduction of tax to the extent as W.P.(C).3527/11 -4- certified in Ext.P4. It is also evident that the assessing authority had issued Ext.P3 certificate to the effect that the work in question does not attract any tax liability. Under such circumstances I am of the view that the denial of refund, raising technicalities, is not at all justified. I am also taking note of the fact that the appellate Tribunal had already found that the work in question does not attract any tax liability. The respondents have no case that the nature of work now being executed is different from that of the work mentioned in the earlier orders of Tribunal or from the nature of work mentioned in Ext.P3 certificate. Hence I am of the view that the matter requires reconsideration at the hands of the 1st respondent and the refund application is liable to be processed on merits, in view of the documents available. It is left open to the 1st respondent to require the petitioner to produce any additional documents regarding receipt of contract amount and evidencing deduction of payment of tax. It is necessary to take a fresh decision on the documents considering the merits of the claim for refund. 6. Under the above mentioned circumstances, Ext.P7 is hereby quashed. The 1st respondent is directed to dispose of the refund application afresh, after affording reasonable opportunity to the petitioner to produce documents in support of their claims and after affording an opportunity of personal hearing. Needless W.P.(C).3527/11 -5- to say that the 1st respondent shall take note of the observations contained herein above while deciding the matter. 7. A fresh decision in this regard shall be taken at the earliest possible, at any rate within a period of one month from the date of receipt of a copy of this judgment. C.K.ABDUL REHIM, JUDGE. okb