BOC INDIA LIMITED Vs. STATE OF KERALA

JUDGEMENT

(1.) THE correctness and sustainability of the condition imposed vide Ext.P14, to satisfy 1/3 of the disputed liability, so as to avail the benefit of interim stay during the pendeny of the appeal forms the subject matter of challenge in this writ petition.

(2.) THE case of the petitioner is that, petitioner company having its Head Office in Kolkata was awarded with a works contract by M/s.Bharat Petroleum Corporation Ltd. (BPCL) for setting up a 'Cryogenic Nitrogen Plan' as part of the expansion/modernisation programme. According to the petitioner, the contract having a value of more 27 crores actually constitutes of three different elements. The first one, to an extent of 90%, is in respect of material supply. The second one is in respect of the civil construction works and the third one is fabrication/installation. In respect of the first part, the entire materials have been supplied in the name of BPCL, against C forms, realising concessional rate of tax. After the consignment as above, the goods have been entrusted by the BPCL with the petitioner, who in turn completed the civil works and also the fabrication/installation works by engaging two sub contractors, as covered by Exts.P3 and P4. According to the petitioner, absolutely no tax liability is there in respect of the supply of materials under the KVAT Act and so also in respect of the fabrication work, which is nothing, but a labour contract. In the case of civil works, there is passing of some goods and in respect of such liability, sub-contractor has already cleared the tax, leading to issuance of certificates in the prescribed forms.

(3.) THE learned Special Government Pleader ( Taxes) appearing on behalf of the respondents submits that, despite the tall claim projected by the petitioner, the actual material supply was only to the tune of Rs. 48 lakhs. The observation made by the third respondent in Ext.P10 as to the exact nature of transaction, raising the bills by the petitioner "in their own name", is a fact which cannot be disputed by the petitioner being part of the documentary evidence on record. Similar submission is made by the learned senior counsel for the petitioner as well that the authority cannot simply shut its eyes to make it dark. This is a disputed fact, which requires to be considered by the appellate authority, with reference to Ext.P13 as well, which however has not been done, while imposing the condition. The learned Government Pleader submits that, the nature of transaction is very much taxable at the hands of the State, in view of the law declared by a Division Bench of this Court in Dosal Limited v. State of Kerala ( 2010(18) KTR 211 (Ker.).