Karnataka High Court
State Of Karnataka vs M/S Mathias Aluminium Systems Pvt Ltd on 4 February, 2014
Bench: Dilip B.Bhosale, B.Manohar
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 4th DAY OF FEBRUARY 2014
PRESENT
THE HON'BLE MR. JUSTICE DILIP B BHOSALE
AND
THE HON'BLE MR. JUSTICE B MANOHAR
STRP.NO.16/2010 & 92-98/2010
C/W
STRP.NO.17/2010 & 2-21/2014(TAX-VAT)
IN STRP.NO.16/2010 & 92-98/2010
BETWEEN
STATE OF KARNATAKA
BY THE COMMISSIONER OF COMMERCIAL TAXES
VANIJYA THERIGE KARYALAYA
GANDHINAGAR, BANGALORE-560009 ... PETITIONER
(BY SMT SUJATHA, AGA)
AND
M/S MATHIAS ALUMINIUM SYSTEMS PVT LTD
CITY POINT, KODIALBAIL
MANGALORE ... RESPONDENT
(BY SRI K G RAGHAVAN, SR. ADV., FOR SMT VANI H, ADV.,)
THIS STRP FILED U/S 65(1) OF KVAT ACT, AGAINST THE
JUDGMENT AND ORDER DATED: 20.10.2009 PASSED IN
STA.500 TO 507/2009 ON THE FILE OF THE KARNATAKA
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APPELLATE TRIBUNAL, BANGALORE, PARTLY ALLOWING THE
APPEALS, FILED UNDER THE PROVISIONS OF THE KARNATAKA
VALUE ADDED TAX ACT, 2003.
IN STRP.NO.17/2010 & 2-21/2014
BETWEEN
STATE OF KARNATAKA
BY THE COMMISSIONER OF COMMERCIAL TAXES
VANIJYA THERIGE KARYALAYA
GANDHINAGAR
BANGALORE 560009 ... PETITIONER
(BY SMT SUJATHA, AGA)
AND
M/S S P FABRICATORS PVT LTD
NO.10, LAKALI VILLAGE
DASANAPURA HOBLI
BANGALORE 562123 ... RESPONDENT
(BY SRI K G RAGHAVAN, SR. ADV., FOR SRI K.J KAMATH,
ADV.,)
THIS STRP FILED U/S 65(1) OF KARNATAKA VALUE
ADDED TAX ACT, AGAINST THE JUDGMENT AND ORDER DATED:
8.2.2010 PASSED IN STA.NO.2102 TO 2122/09 ON THE FILE OF
THE KARNATAKA APPELLATE TRIBUNAL, BANGALORE,
ALLOWING THE APPEALS.
THESE STRP'S COMING ON FOR HEARING AND
RESERVED FOR JUDGMENT, THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:
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JUDGMENT:(DILIP B. BHOSALE J.) These sales tax revision petitions, under Section 65(1) of the Karnataka Value Added Tax Act, 2003 (for short "the Act"), preferred by the State of Karnataka, are directed against the orders dated 20th October 2009 and 8th February 2010 passed by the Karnataka Appellate Tribunal at Bangalore (for short "the Tribunal"), whereby, the appeals filed by respondent-assessees have been partly allowed. Since the questions raised and involved in these petitions are similar, they are being disposed of by this common judgment.
2. In the first set of Revision Petitions i.e.,STRP Nos.16 and 92 to 98 of 2010, the State of Karnataka impugned the order dated 20.10.2009 rendered by the Tribunal, whereby Sales Tax Appeal Nos.500-507 of 2009, filed by M/s.Mathias Aluminium Systems Private Limited (for short "M/s.Mathias") were partly allowed. Those 4 appeals were directed against the common order dated 23rd December 2008 passed by the Joint Commissioner of Commercial Taxes (Appeals), being the First Appellate Authority, (for short "the FAA") in appeal Nos.KVAT/AP-26 to 34/07-08. The appeals before the FAA were preferred against the order dated 26th March 2007 passed by the Assistant Commissioner of Commercial Taxes (Audit)-2, DVO, Mangalore, being Assessing Authority, (for short the "AA"). Vide order dated 26th March 2007, the AA passed re-assessment order under Section 39 (1) of the Act and directed the respondent-assessees to pay additional tax, interest and penalty for the tax periods between April, 2006 and November, 2006.
3. In the second set of Revision Petitions i.e., STRP Nos.17/2010 & 2 to 21 of 2014, the petitioner-State of Karnataka impugned the order dated 8th February 2010 passed by the Tribunal in STA Nos.2102-2122/2009. The Sales Tax Appeals, before the Tribunal, filed by the 5 respondent-assessee i.e. M/s.S.P.Fabricators Private Limited (for short "M/s. S.P.Fabricators"), under Section 62 (6) of the Act, were directed against the orders made by the FAA dated 26-10-2009 in appeal Nos.VAT/AP-191- 243/09-10. Those appeals were against the re-assessment order dated 15-5-2009 passed by the AA under Section 39 (1) of the Act. By this order, the AA also levied penalty under Section 72 (2) and interest under Section 36 (1) of the Act for the tax period from May 2006 to March 2008. In short, the AA directed M/s.S.P. Fabricators to pay additional tax, interest and penalty for the tax period between May, 2007 and June 2007.
4. M/s Mathias and M/s S P Fabricators are hereinafter jointly referred to as "Assessees".
5. In these Revision Petitions the following three questions of law fall for our consideration :
(a) Whether on the facts and in the circumstances of the case, and in law, the 6 Tribunal was justified in holding that the nature of works contract executed by the assessees are covered only by Entry 4 in the Sixth Schedule of the Act attracting 4% tax, as it was then prevailing?
(b) Whether the works contract executed by the assessees could be termed/treated as composite contracts, within the meaning of Entry 22 and 23, having regard to the nature of works carried out by them ?
(c) Whether the nature of works executed by the assessees could be treated as "structural works" within the meaning of Entry 4 of the Sixth Schedule?
6. M/s. Mathias is a company engaged in execution of various works contracts of the following nature: glazing works contracts, structural works contracts involving construction of various small structures like cabins, using aluminium sections, aluminium sheets, gypsum boards, glass sheets, etc. , construction and erection of false ceilings; using gypsum boards, plaster of Paris, G.I. 7 Sections etc; construction of partitions, supply and fitting of air conditioners, furniture and fittings and interior decoration works contract.
7. M/s.S.P.Fabricators are engaged in execution of works contract of structural glazing, ACP cladding and other glazing works contracts, including fabrication and installation of aluminium and glass windows, louvers, doors etc.
8. The assessees claim that the nature of works contract executed by them during the relevant tax period are covered by Entry No.4 in the Sixth Schedule of the Act and accordingly they declared taxable contract receipts at 4% on the turnover for the relevant period. The Assessing Authority, however, after auditing the books of accounts and on the basis of the documents made available by the assesses came to the conclusion that the nature of works contract executed by them would fall under Entry 3, 4 and 23 of the Sixth Schedule of the Act and consequently, 8 levied tax at 12.5%. The Assessing Authority also invoked the penalty provisions under Section 72 (2) and levied penalty on the ground that there was under statement of tax liability. Further, the Assessing Authority levied interest under Section 36 of the Act, on the difference of the output tax payable by the assessees.
9. Thus, from the orders passed by the authorities below including the order of the Tribunal, the question that arise for our consideration on the facts and in the circumstance of the case and in law is, whether the Assessing Authority was justified in holding that the nature of works contract executed by the assesses, were composite contracts, and, therefore, would fall under Entry 23 in the Sixth Schedule of the Act and not only under Entry 4 thereof. In other words, it is necessary to decide whether the transaction/nature of works contracts, executed by the assessees were composite contracts and are, therefore, covered by Entry 23 or having regard to 9 nature of works it is covered only by Entry 4 in the Sixth Schedule of the Act.
10. Before we consider the orders of the AA and FAA, it would be relevant to have a glance at the relevant provisions of the Act and at the entries in the Sixth Schedule, so as to find out whether approach of the Tribunal in dealing with the case was correct/justified.
11. Section 4 of the Act deals with liability to tax and rates thereof. Under this Section, every dealer who is or is required to be registered as specified in Sections 22 and 24 of the Act, shall be liable to pay tax on his taxable turnover, in respect of goods mentioned in the second, third and fourth schedules including the goods mentioned in clause (b) of Sub-section (1) thereof. In the present revision petitions, we are concerned with clause (c) of sub- section (1) of Section 4 which states that the dealer shall be liable to pay tax, on his taxable turnover, in respect of transfer of property in goods (whether as goods or in some 10 other form) involved in the execution of works contract specified in Column (2) of the Sixth Schedule, subject to Sections 14 and 15 of the Central Sales Tax Act, 1956, at the rates specified in the corresponding entries in Column (3) of the said schedule. Sixth Schedule consists of 23 entries. In the present case, the relevant entries are 3, 4, 22 and 23 which read thus:
Sixth Schedule Sl.No. Description of works contract Rate of tax 1 2 3 (1) xxxx xxxx xxxx xxxx (2) xxxx xxxx xxxx xxxx 3 Electroplating, electro-galvanising, Four per cent anodizing and the like 4 Fabrication and erection of structural Four percent works including fabrication, supply and erection of iron trusses, purlines, etc., 5 to xxxx xxxx xxxx xxxx 21 22 Composite contracts involving two or Four percent more of the above categories 23 All other works not specified in any Twelve and of the above categories including one half composite contracts with one or percent more of the above categories 11 Entry 3 in the Sixth Schedule, provides for works contract of electroplating, electro-galvanising, anodizing and the like. In the present case some material used by the assessee was either electroplated or electro-galvanised or anodized. There is no finding recorded by the Tribunal whether it was done by them or they procured it from the market. Entry 4 provides for works contract of fabrication and erection of "structural works" including fabrication, supply and erection of iron trusses, purlines, etc. Entry 22 speaks about composite contracts involving two or more of the above (Entry 1 to 21) categories. Entry 23 is a residuary entry which provides that all other contracts not specified in any of the above (Entry 1 to 22) categories including composite contracts with one or more of the categories enumerated in Entries 1 to 22. Different rates of tax are provided for different Entries such as 4% for Entry Nos.3, 4 and 22 while for Entry 23 it is 12½%.12
11.1 From bare perusal of the Sixth Schedule, it is clear that it also provides for rate of tax for "composite contracts" involving two or more of the categories covered by entries 1 to 21 in this Schedule. For all other works not specified in any of the categories covered by entries 1 to 21, including composite contracts with one or more of the above categories, the rate of tax would be more, i.e. 12½%. The expression "composite contracts" as occurs in Entry 22 and Entry 23, is having different connotation. Entry 22 provides for description of works contract involving two or more of the categories in Entry 1 to 21. Entry 23 provides for description of works contract which are not specified in Entries 1 to 21 and so also, the composite contracts of the work not specified in any of those categories (specified in Entry 1 to 21) with the works contracts involving one or more of the above categories (Entry 1 to 21). In other words, if the works contract is in respect of the works not specified in any of the categories in Entry Nos.1 to 21 alongwith the work/s of the categories 13 covered by Entry No.1 to 21 it would be treated as "composite contract" within the meaning of Entry 23. It means unless it is a works contract of the category not specified in any of the categories specified in Entry 1 to 21, coupled with the works specified in any of those categories, the tax would be 12½%. As per Entry 22 the works contracts involving two or more of the categories specified in Entry 1 to 21 would also be treated as "composite contract," but in that eventuality the rate of tax would be only 4%.
12. Having read the entries in the Sixth Schedule of the Act, in the present case, we would like to examine whether the works contracts under taken by the respondent-assessees would fall under only one entry viz., Entry 4 as claimed by them or it is covered by more than one entries coupled with the works not specified in any of the categories in Entries 1 to 21.
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13. The order of the Tribunal in M/s.Mathias is exhaustive covering the factual matrix/aspect of M/s.S.P.Fabricators also and perhaps that is the reason, as observed in the order, why in that case, it has not dealt with all the aspects in depth. The Tribunal, in M/s.Mathias, after verification of various statements filed by the assessees duly supported with copies of the connected invoices, classified the works contract executed by the assesses, on the basis thereof, as follows:
"Glazing/external cladding works
contract which are of two types. ACP
cladding and glazed glass cladding. ACP
cladding is the abbreviated description of 'aluminium composite panel external cladding' in which aluminium panels coated with PVDF are fixed on rectangular aluminium frames which in turn are fastened to the supporting RCC bases, pillars, roof edges etc., of the concerned building with galvanized iron fastener clamps top create structures known as 'curtain walls' which serve as external walls of buildings.
In the second type of glazing, glazed glass sheets of sufficient strength are bonded to rigid rectangular aluminium frames which in turn are fastened to the supporting RCC bases, pillars, roof edges etc., of the 15 concerned building with galvanized iron fastener clamps. As a result of which a curtain wall made of glass/aluminium and steel is erected to serve as the external wall of the concerned building."
14. The works contract of M/s.Mathias are concerned, classified by the Tribunal as follows:
" Structural works involving the construction of several cabins in large halls using structures of aluminium fitted with glass/ P.V.C. panels/poly carbonated panels with the result that a large open hall gets converted into a large number of small room-like cabins which are durable like any other permanent construction (if not subjected to any violent actions).
Other works contracts which include works contracts of interior decorations with false ceilings and supply and fixing of furniture and fittings etc."
15. Insofar as the works contract, executed by the assessees, consisting of structural glazing, external cladding etc. are concerned, they are of two types. One, ACP cladding, glazed glass cladding etc., and two, glazed glass sheets of sufficient strength bonded to rigid rectangular aluminium frames fastened to the supporting 16 RCC bases, pillars, roof edges etc., of a building. The assessees claim that both types of works serve as external wall of the building. We, however, do not agree with their claim. The word 'cladding', in the first type of works, itself is an indication that it is for covering or coating with metal (ACP) or glass, and, therefore, in any case it cannot be a substitute to external wall or it cannot serve as external wall. The works mentioned/described in the second type of works, however, could serve as external wall or a substitute to external wall. From the very nature of works classified by the Tribunal, in our opinion, would show that it is not covered only by Entry-4.
16. The Assessing Authority, in M/s.S.P.Fabricators, has considered the case extensively. From the order of the Assessing Authority dated 15-5-2009, it appears to us that the Assessing Authority has considered every single works 17 contract entered into by the assessees with their clients and the actual nature of works executed by them. The Assessing Authority has also considered the words/expressions "structural glazing", "suspended glazing", "Curtain Walling", "ACP Cladding", Fixed Glazing, aluminium and structural glazing, window wall glazing to the external walls of the building, spider structural glazing, patch fitted partitions, double glazed sky light roofing, providing aluminium windows and louvers, canopy with ACP cladding, clay tile cladding, installation of external fixture and glazing works, strip glazing, suspended spider glazing, doors in terrace etc. The Assessing Authority has taken trouble of referring to dictionary meaning of several words such as "structural" and "glazing". Further we find that the Assessing Authority has also considered the word "composite" as employed in the Sixth Schedule, in particular, in Entry No.22 and 23 thereof. It has analysed and compared the works contract and the type of works contract undertaken by the assessee for different clients. 18 After considering every individual works contract between the assessees with their clients including connected invoices and receipts from works contracts in the last paragraph of the order drawn its conclusions as follows :
"1. The works contract undertaken by the assessee are in the nature of "STRUCTURAL GLAZING", "SUSPENDED GLAZING", "CURTAIN WALLING", "ACP CLADDING", "FIXED GLAZING" and fixing of aluminium & glass doors & windows and related work falling under Entry 23 of VI Schedule to KVAT Act, 2003 liable to tax at 12.5%.
2. The woks contract executed by the assessee is a composite works contract comprising of works relating to fabrication and supply of aluminium & glass panels, fabrication and erection of MS Structure, anodizing and powder coating, providing aluminium & glass partitions, doors & windows, providing anodized louvered ventilators, providing glass framed windows to the glazed exteriors, providing aluminium and glass partitions with internal interiors fall under entry 3, 4 & 23 of VI Schedule to KVAT Act 2003. ACP cladding, providing vision panels, spider glazing, suspended glazing, cladding to canopy, double glazed sky lite roofing, providing anodized louvers, insulting the spandrel area do not fall in any of the entry of VI Schedule to KVAT Act, 2003. Therefore they are liable to tax at 12.5% under entry 23 of KVAT Act, 2003. Hence as per entry 23 composite works 19 contract with one or more of the categories of VI Schedule shall be liable to tax 12.5% under entry 23.
3. The Commissioner of Commercial Taxes has set aside the Advance Ruling in totality and has held that the jurisdictional assessing officer is free to determine the nature of works contract on the basis of works contract orders as could be seem from the terms of the agreement.
4. The Commissioner of Commercial Taxes has not come to the conclusion that, the nature of works contract falls within entry 4 of VI Schedule. The Commissioner of Commercial Taxes has analysed the nature of works contract brought on record and has taken a view that, it is the assessing authority who has to decide the nature of contract based on the dominant nature of works contract.
5. The works contract of "STRUCTURAL GLAZING", "SUSPENDED GLAZING", "CURTAIN WALLING", "ACP CLADDING", "FIXED GLAZING" are unique contract to enhance the beauty of the building by providing aluminium and glass exteriors & interiors.
6. These glazing system of fixing the glasses determine the economies as well as aesthetics of buildings. These systems are fastest growing form of curtain wall construction which allows broader architectural flexibility in achieving dramatic design accents for the civil constructed building.20
7. The only work falling under entry-4 is fabrication and erection of MS Structure and fixing of fabricated aluminium & glass panels to the metal façade. All other works related to other entries.
8. The dominant feature of contract is to provide glazing that means to shine or make it more attractive to the public and to enhance the aesthetic beauty of the civil structure. Therefore it is not erection and fabrication of structural work.
9. The pictorial evidences provided by the assessee and pictorial depiction of the works contract executed by the assessee reveals that the contracts are to provide glazing to the civil structure not to erect any structural work.
10. The works contract orders are for the execution of works contract of GLAZING WORKS not for any fabrication, erection of structural work. Therefore, the dominant feature of the works contract is "GLAZING" to the civil structure not fabrication and erection of structural work.
11. The proceedings of the other case cannot be the basis for the assessee to determine the nature of works contract and admit the tax liability.
12. The website of the company www.spfab.net and the works contract orders clearly declare that, the works contract executed by the assessee company are in the nature of GLAZING WORKS and not fabrication, erection of structural work.21
Therefore, the dominant feature of the works contract is "GLAZING" to the civil structure not fabrication and erection of structural work.
Therefore the contentions raised by the assessee are not correct. Hence tax at 12.5% is hereby levied."
17. The Assessing Authority, thus, has held that the works contract executed by the assesses were covered by Entries 3, 4 and 23. In other words, works contract entered into by the assessees and executed by them, were composite contracts of the categories not specified in any of the categories covered by Entries 1 to 21 coupled with Entry 3 and/or 4, and therefore, liable to pay 12½% tax as contemplated by Entry 23 in the Sixth Schedule of the Act.
18. The appellate authority also after considering the order of the Assessing Authority in depth and recording its own reasons reached the very same conclusion. The Appellate Authority has also considered the works contracts entered into by the assessees with its clients and 22 analysed the same, confirming the order passed by the Assessing Authority.
19. The Tribunal, however, has not considered the appeals in the manner in which it ought to have. In other words, the Tribunal has not either independently analysed the works contracts entered into by the assesses for execution of different type of works or considered the nature of works executed by them nor has it recorded any independent findings or made any observations for either disagreeing with the concurrent findings recorded by the authorities below or recorded its independent findings for not agreeing that the works contract executed by the assesses were composite works. We find that the Tribunal has not taken into consideration the nature of work so as to hold that they are covered by Entry No.4 only. The order of the Tribunal, in our opinion, is not only incomplete but it is perverse.
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20. It is not in dispute that the assessees are engaged not only in fabrication and erection of structural glazing, glass glazing etc., works as substitute to the external walls of structures/building but they are also in ACP cladding and glass cladding. The expressions "fabrication" and "external structural works" are not defined in the Act. The assessees while erecting structural glazing/glass glazing use complete wall structures made of galvanized iron section, aluminium frames, glass sheets, plastic sheets, etc. The structural glazing, in our opinion, is not only fixing glasses so as to enhance the aesthetic quality and outlook of the building. Structural glazing, glass glazing etc. could be a substitute to external wall and if that be so, it would fall in the category of "structural works" as contemplated by Entry 4. It would not be correct to state that erection of structural works as contemplated by Entry 4 would only mean erection of load bearing structures. As against this any works, such as ACP cladding and glass cladding on the existing wall, which only 24 enhances aesthetic look or beauty/outer look of the building, as a substitute to conventional painting, in our view, would not fall in the category of "structural works" as contemplated by Entry 4.
21. The expression structural work as occur in Entry No.4 needs to be considered and understood so as to record a categoric finding whether any part of the works contract in the present case could be called "structural works" so as to find out whether it is covered by Entry 4 and, further to consider whether every work of glass cladding and ACP Cladding could also fall in the category of structural works. In other words, if such work is done only for enhancing aesthetic look/outer look of the building and not as substitute to external walls it cannot be treated as "structural works" within the meaning of the expression used in Entry No.4. The Tribunal has not considered whether the nature of works executed by the assessees 25 would fall under any other entry as was considered by the Assessing Authority and the appellate authority.
22. Insofar as the works contract of M/s.Mathias are concerned, from bare perusal of the nature of works as described by the Tribunal after having referred to various statements filed by them with supporting documents including connected invoices, it is clear to us that the works executed by them is in the nature of interior decoration. It is common knowledge that in all commercial buildings, developers/builders do not construct walls, flooring etc and what they sell to customers is only RCC skeleton with external walls or a structural glazing, curtain wall etc. as a substitute to external walls. The purchaser of the premises thereafter get the interior done, converting open space into cabins/cubicles and so also entire interior of the office premises as per their requirements. Merely because, the assessees also undertakes to construct cabins in empty halls, it cannot be stated that it is a part of 26 structural works. Such works in our opinion, would amount to interior. It would not be correct to say that merely because assessees construct complete room-like structures with the help of aluminium section/frames, glass sheets and plywood sheets, gypsum sheets, PVC/Polycarbonate sheets, etc. it amounts to structural works within the meaning of Entry 4. This in our opinion, would amount to interior work done for the client by the assessees. Construction of cabins, cannot be in any case called "structural works". Construction of cabins with the help of aluminiuim angles and other material, as stated above, would not mean fabrication and erection of "structural works" as contemplated by Entry 4. As a matter of fact, it is a part of interior of the premises. The concept of interior decoration has also undergone change with the changing time so as to include erection of cabins with the help of the material as mentioned above. The view taken by the Tribunal that the works contract executed by M/s.Mathias of this nature is covered only by Entry 4 is not 27 sustainable in law. It is necessary to look into the nature of works executed by them afresh to find out, in the light of the observations made in this judgment, whether their works would fall under only one entry or it were composite contracts.
23.1. The FAA while affirming the order of the AA in the concluding paragraph observed thus:
"In the instant case the appellant undertakes not only the work contract of erecting aluminium partition he also undertook the contract work of fixing the furnitures work contract of interior decoration and works contract of fitting, Air conditions. Advance rulings given in respect of particular work contract differs from the works contract under taken and executed by the appellant. The works contract under taken and executed by the appellant certainly falls under entry No.23 of sixth schedule to KVAT act 2003 and for tax at 12.5% from 1-4-2006 onwards. Advance rulings cannot come to the rescue of the appellant because facts are different. The orders passed by the respondent authority are sustainable and hence they are upheld. Levy of penalty u/s 72(2) by the respondent authority is in accordance with KVAT Act 2003. I find no reason to interfere with the order passed by the respondent authority."28
23.2. The Tribunal after considering the relevant entries namely, Entry Nos.4, 23 in the Sixth Schedule to the Act in concluding paragraphs 10, 11 and 12 observed thus:
"10. In the Taxation Law as regards assessment of tax when a specific work is in the list, it has to be considered whether the work to be assessed comes under its purview or not. If it doesn't come in that specific list, it has to be considered whether it comes in the purviews of the list of 'all other works' coming in the same schedule. Here the appellant takes up the contract of fabrication of structural works with aluminium fixing glazed materials and external cladding of the same on the building. Here he fabricates structures with aluminium panel required for the external cladding and fixes glazed material to it and then supplies them to the person who places the order and erects the structures to the outer portion of the building. It is apparent that all these works come under the purview of Sl. No.4.
11. Sl. No. 23 indicates that excluding the above mentioned subject, other composite contracts should be subjected to tax. Obviously the appellant takes up the contract of fabrication of composite panels of aluminium and fixing of glass etc., to them and then external cladding on the building. In such circumstance, it is clear that this work comes in the purview of Sl. No. 4 of 6th schedule.29
Hence when the work of the appellant comes under the specific list for assessing the tax, it is not correct. To asses the tax by wrongly including it in the purview of other work's list.
12. Already this tribunal has decided in the case of M/s Mathias aluminum Systems Private Limited, Mangalore v/s Karnataka State (STA 500-507/09) on 20-10-2009 that this contract work of Aluminium Composite Panel External Cladding comes in the purview of Sl. No. 4 of 6th schedule of this Act. The said judgment is fair and correct. Hence it is not lawful to both authorities to assess the tax wrongly by deciding that the contract work of this appellant comes in the purview of Sl. No. 23 of 6th schedule. It is lawful for the authority to assess the tax by deciding that it comes in the purview of Sl. No. 4 of the same schedule."
24. From bare perusal of the observations made by the Tribunal, it appears to us, the approach of the Tribunal was casual while reversing the concurrent findings of fact. The Tribunal has not endeavoured to find out on the basis of the materials on record as to whether the works contracts executed by the assessees were "composite" in nature, as contemplated by Entry 23. We do not find any whisper in the order of the Tribunal of having considered 30 whether any part of the contracts executed by the assessees would fall under Entry 3 or any other entry for that matter coupled with the works not covered by any other categories in Entries 1 to 21. It has also not recorded any reason for either setting aside the findings recorded by the authorities below, holding the works contract as composite works contract or for disagreeing with such view. In the circumstances, we are of the considered opinion that the order of the Tribunal deserves to be set- aside and remand the matter to the Tribunal for its consideration afresh. Hence we pass the following order:
The impugned orders dated 20.10.2009 and 08.02.2010 passed by the Tribunal are set-aside and the appeals, disposed of by the Tribunal, are restored to file.
The Tribunal shall endeavour to dispose of the appeals afresh, on merits and accordance with law, as expeditiously as possible and preferably within a period of eight months from the date of receipt of this order. The 31 Tribunal, while deciding the appeals afresh shall do so in the light of the observations made in this judgment. All contentions of the parties are kept open. No costs.
Sd/-
JUDGE Sd/-
JUDGE Ia