IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE V.K.MOHANAN FRIDAY, THE 25TH SEPTEMBER 2009 / 3RD ASWINA 1931 ST.Appl..No. 3 of 2008() ------------------------ R2.29915/2004/CT of COMMR. OF COMMERCIAL TAXES, TRIVANDRUM .................... APPELLANT: -------------------- TOM THOMAS, KONDODY AUTOMOTIVE, KODIMATHA, KOTTAYAM. BY ADV. SRI.VIJAYAN. K.U. RESPONDENT(S): --------------- 1. COMMISSIONER OF COMMERCIAL TAXES, PUBLIC OFFICE BUILDINGS, VIKAS BHAVAN, P.O., THIRUVANANTHAPURAM 695 001 2. THE INTELLIGENCE OFFICER (IB), O/o. THE INSPECTING ASST. COMMISSIONER (INT.), COMMERCIAL TAXES, KOTTAYAM 686 001 3. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVT., DEPARTMENT OF TAX, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM 695 001 GOVERNMENT PLEADER SRI. MOHAMMED RAFFIQ THIS SALES TAX APPEAL HAVING BEEN FINALLY HEARD ON 25/09/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: C .N. RAMACHANDRAN NAIR & V.K. MOHANAN, JJ. -------------------------------------------- S.T.A. No. 3 OF 2008 -------------------------------------------- Dated this the 25th day of September, 2009 JUDGMENT Ramachandran Nair, J. The challenge is against suo motu revisional order issued by the Commissioner by setting aside the first revisional authority's order and by remanding the case to the Intelligence Officer for reconsideration of the levy of penalty on the appellant for the assessment years 1998-99 and 1999-2000. We have heard counsel appearing for the appellant and Government Pleader for the respondents. 2. Even though counsel for the appellant submitted that the appellant is aggrieved by the observations and findings of the Commissioner of Commercial Taxes, we notice that it is an open remand by the Commissioner and he has only asked the Intelligence Officer to look into the documents and evidence pertaining to work executed by the appellant. Appellant's case is that bus body is built with materials supplied by awarders along with chassis given by them. It is for the appellant to produce purchase bills of goods produced by 2 the suppliers along with chassis supplied by them for construction of bus body. Admittedly appellant had made purchases in his own account even from outside the State. Therefore it is a matter for the Intelligence Officer to verify the records with the goods purchased by the appellant and the goods brought and supplied by the awarders along with bills and other transport documents and decide the matter afresh. We do not find any ground to interfere with the remand order by the Commissioner. Consequently the appeal is dismissed. However, we make it clear that legal position for liability for works contract including bus body building is covered by various decisions of the High Courts and even that of the Supreme Court. It is for the Intelligence Officer to consider such judgments while deciding the matter. However, since the issue is pending for long, there will be direction to the Intelligence Officer to complete the proceedings remanded to him by the Commissioner within a period of three months from the date of receipt of a copy of this judgment. Appellant will produce a copy of this judgment before the Intelligence Officer and co- operate with the enquiry for finalisation of proceedings. Even though 3 counsel for the appellant submitted that after finalisation of assessments confirmed in appeal, the Intelligence Officer cannot levy penalty in the matter, we are unable to accept this contention because penalty proceedings under Section 45A are different. However, tax assessed and paid should always be kept in mind while fixing the penalty for evasion of tax. (C.N.RAMACHANDRAN NAIR) Judge. (V.K. MOHANAN) Judge. kk 4