STATE OF KERALA Vs. GAMMON INDIA LTD

JUDGEMENT

(1.) The State is in appeal from a common judgment of the learned Single Judge. State of Kerala entered into a concessionaire agreement with the Greater Cochin Development Authority (GCDA) to build the Mattancherry Bridge. The GCDA decided to award the contract on build, operate and transfer (BOT) basis and invited tenders for the purpose of construction of the bridge, in which the assessee was the successful bidder. The assessee entered into a contract with the GCDA on BOT basis and sub-contracted the work to a Special Purpose Vehicle Company (M/s. Cochin Bridge Infrastructure Company Ltd.), which is a subsidiary Company of the assessee. The Special Purpose Vehicle Company awarded the contract work back to the assessee, but however retained the right to operate. The assessments are with respect to the works contract executed by the assessee. The assessments, subject matter of W.A.No.961/2015, are of the years 1999-2000, 2000-2001 and 2001-2002.

(2.) The assessment orders for all the three years were challenged in W.P.(C) No.28084/2008. W.P.(C) No.12748/2010 was filed seeking refund of the amounts paid at the time of admission of W.A.No.1023/2008, which was disposed of by Ext.P2. The claim in both the Writ Petitions were that the assessee was entitled to compounding, which they had applied for, to the specific contract; in all the three years and hence there should be a refund from the amounts paid on the basis of an estimation made of the toll charges, which could have been collected on operation of the toll for a period of 19 years.

(3.) The learned Single Judge considered the issue for all the years and found that for the years 1999-2000 and 2000-2001 the assessee is entitled to compounding and quashed Exts.P3, P6, P6(a), P6(b) and P7 orders produced in W.P.(C) No.28084/2008. Ext.P3 is the order passed by the Deputy Commissioner (Commercial Taxes), Mattancherry exercising powers of suo motu revision under Section 35 of the Kerala General Sales Tax Act ('KGST Act' for short) canceling the assessment made for the year 1999-2000 finding that there is no audited balance-sheet filed in Form 50A and B for the subject year. It was also found that there was a short-fall in turnover which had to be assessed for the said year. Ext.P6 is the assessment order passed by the Assessing Officer (AO) for the year 1999-2000. Ext.P6(a) is the assessment for the year 2000-2001. Ext.P6(b) is the assessment order for the year 2001-2002. Ext.P7 is the order of the AO rejecting the compounding application filed for the year 2000-2001. As far as the assessment year 2001-2002, the AO had rejected the compounding application by Ext.P8. The learned Single Judge found that Ext.P8 is also in terms of Ext.P3, but however, refused to interfere with the same in deference to Ext.P2 Division Bench judgment produced in W.A.No.713/2015. Hence, as far as 2001-2002, there is no issue pending in appeal, since the direction is only to carry out the assessment as per the Division Bench judgment of this Court in Ext.P2 produced in W.A.No.713/2015.