PRAKASH ASPHAL TINGS Vs. COMMERCIAL TAX OFFICER

JUDGEMENT

(1.) Since the controversies involved in the above cases are between the same parties, with the joint request of the parties, they are analogously heard and decided by this common order. By way of these petitions filed under Article 226 of the Constitution of India, the petitioner has called into question the legality of assessment and revisional orders passed under the Madhya Pradesh Commercial Tax Act, 1994 treating its Build - Operate - Transfer (in short 'the BOT' scheme as works contracts and holding them liable to pay the commercial as well as entry tax. The challenge is on the ground that there was no actual sale or no transfer of property or goods during the relevant assessment years, and that there was no taxable turnover or business activity until the commencement of toll collection, which only started from 7/6/2001. These writ petitions relate to the assessment years 2000-2001.

(2.) The petitioner is a company engaged in the business of infrastructure development and in particular related to the construction and maintenance of roads and highways under the BOT scheme.

(3.) Learned Senior Counsel for the petitioner submitted that the assessments in question are liable to be set aside both in respect of the levy of Commercial Tax and Entry Tax, as the same are based on erroneous assumptions of law and fact. Learned Senior Counsel submitted that the petitioner undertook construction of road projects under the Build-Operate-Transfer (BOT) model for which the entire cost of construction and maintenance was borne by the petitioner, with the only consideration being the right to collect toll from users of the completed road. Learned Senior Counsel submitted that since there was neither contract for sale or supply of goods to the State nor any transfer of property in goods for consideration which are essential requirement to attract provisions of tax under the Madhya Pradesh Commercial Tax Act, 1994 or Entry Tax Act, 1976 and since the toll collected constituted only user fees paid by third parties and not consideration paid by the State Government thus the concept of works contract or sale is not attracted.