Kerala High Court
M/S.Kone Elevator India Private ... vs The State Of Kerala on 23 September, 2005
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
MONDAY, THE 21ST DAY OF JULY 2014/30TH ASHADHA, 1936
WP(C).No. 21552 of 2012 (T)
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PETITIONER(S):
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M/S.KONE ELEVATOR INDIA PRIVATE LIMITED,
NO.41/16,
KOCHI-18 .
REPRESENTED BY ITS COMPANY SECRETARY
SRI.C.V.S. KRISHNAKUMAR.
BY ADVS.SRI.N.MURALEEDHARAN NAIR
SRI.V.K.SHAMUSUDHEEN
RESPONDENT(S):
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1. THE STATE OF KERALA,
REPRESENTED BY ITS SECRETARY TO TAXES DEPARTMENT,
GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM-695 001.
2. ASSISTANT COMMISSIONER (ASSESSMENT),
SPECIAL CIRCLE-II, KVAT,
SALES TAX COMPLEX,
THEVARA, ERNAKULAM-682 015.
BY GOVERNMENT PLEADER SRI.BOBBY JOHN.
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
21-07-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
rvs/
WP(C).No. 21552 of 2012 (T)
APPENDIX
PETITIONER(S) EXHIBITS :
EXT.P1 TRUE COPY OF THE PRE-ASSESSMENT NOTICE ISSUED BY 2ND RESPONDENT
DATED 23/9/2005.
EXT.P2 TRUE COPY OF THE ORDER IN W.P.(C)NO.528/2005 DATED 24/10/2005.
EXT.P3 TRUE COPY OF THE REFERENCE ORDER PASSED IN W.P.(C)NO.232/2005
DATED 13.02.2008.
EXT.P4 TRUE COPY OF THE ORDER IN SLP (CIVIL) NOS 14961-14967/2005 DATED
29.08.2005.
EXT.P5 TRUE COPY OF THE OBJECTION FILED BY THE PETITIONER BEFORE THE
2ND RESPONDENT DATED 07.10.2005.
EXT.P6 TRUE COPY OF THE ASSESSMENT ORDER PASSED BY 2ND RESPONDENT FOR
THE YEAR 2003-04 DATED 30/09/2010.
EXT.P7 TRUE COPY OF THE ASSESSMENT ORDER PASSED BY 2ND RESPONDENT FOR
THE YEAR 2004-05 DATED 20/10/2010.
RESPONDENT(S)' EXHIBITS:
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NIL.
/true copy/
P.A.TO JUDGE
rvs/
K. VINOD CHANDRAN, J.
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W.P.(C) No. 21552 of 2012
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Dated this the 21st day of July, 2014
J U D G M E N T
In the Writ Petition the common question raised is whether the supply and installation of lifts/elevators would come under the definition of sale or is liable to be treated as works contract. The issue was pending consideration before a larger Bench of the Honourable Supreme Court; the decision reported in State of Andhra Pradesh v. M/s. Kone Elevator (India) Ltd. in 2005(3) SCC 389 having been referred for re-consideration in Kone Elevator India Private Limited v. State of Tamil Nadu and others in 2010 (14) SCC 788. The Honourable Supreme Court by a majority judgment has declared that the earlier judgment of 2005 does not correctly lay down the law and has held that the supply and installation of lifts/elevators includes performance of labour and service also, in addition to the material supply and hence the fundamental characteristic of W.P.(C) No. 21552 of 2012 2 works contract is attracted. In such circumstance, the Writ Petition is to be allowed, respectfully following the judgment of the Honourable Supreme Court reported in M/s. Kone Elevator India Pvt. Ltd. v. State of Tamil Nadu and others in CDJ 2014 SC 412.
2. With respect to the present Writ Petition, they were filed against the assessment order. This Court had granted a stay of operation of the order to the extent to which the supply and installation of lifts/elevators was treated to be a sale of goods. The other aspects were left to be considered in appeal. The learned Counsel appearing for the petitioner submits that, appeal was filed from the assessment order, with respect to the other aspects on which the petitioner intended a challenge. Following the dictum of the Honourable Supreme Court in the aforecited decision, it has to be held that the assessment completed, as sale, cannot be sustained. The petitioner shall produce a certified copy of this judgment before the assessing officer within a period W.P.(C) No. 21552 of 2012 3 of three weeks from today. The assessing officer shall assess the supply and installation of lifts/elevators as a works contract and pass assessment order for the respective year after affording an opportunity of hearing to the petitioner. The assessment order produced in the Writ Petition, Ext.P6 (2003-04) is set aside to the extent the turn over of the petitioner relating to transaction in elevators being assessed as sale.
The Writ Petitions stand allowed on the aforesaid terms.
Sd/-
K. VINOD CHANDRAN, JUDGE SB // True Copy // P.A To Judge.