Gujarat High Court
Kone Elevator (India) Private Limited vs State Of Gujarat & on 21 December, 2016
Bench: M.R. Shah, B.N. Karia
C/SCA/4638/2011 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 4638 of 2011
For Approval and Signature:
HONOURABLE MR.JUSTICE M.R. SHAH Sd/
and
HONOURABLE MR.JUSTICE B.N. KARIA Sd/
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1 Whether Reporters of Local Papers may be allowed to see No
the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy of the No
judgment ?
4 Whether this case involves a substantial question of law as No
to the interpretation of the Constitution of India or any
order made thereunder ?
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KONE ELEVATOR (INDIA) PRIVATE LIMITED....Petitioner(s)
Versus
STATE OF GUJARAT & 1....Respondent(s)
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Appearance:
M/S WADIAGHANDY & CO, ADVOCATE for the Petitioner(s) No. 1
MR HARDIK VORA, ASSTT.GOVERNMENT PLEADER for the Respondent No.1
RULE SERVED for the Respondent(s) No. 1 2
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CORAM: HONOURABLE MR.JUSTICE M.R. SHAH
and
HONOURABLE MR.JUSTICE B.N. KARIA
Date : 21/12/2016
ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE M.R. SHAH) [1.0] By way of this petition under Article 226 of the Constitution of India, the petitioner has prayed for an appropriate writ, direction and order to quash and set aside the impugned assessment order and the demand notice pursuant thereto dated 13.03.2011 for the Assessment Page 1 of 3 HC-NIC Page 1 of 3 Created On Thu Dec 22 00:01:15 IST 2016 C/SCA/4638/2011 JUDGMENT Year 200607 issued by the respondent No.2 (annexed at AnnexureG Colly).
[2.0] It is required to be noted that as such against the order passed by the Assessing Officer there is a statutory appeal provided before the first Appellate Authority and thereafter before the learned Tribunal. However, considering the fact that in the year 2011 the earlier Division Bench had already admitted the main Special Civil Application and therefore, it will not be appropriate for this Court now to relegate the petitioner to approach the first Appellate Authority. Therefore, the present petition is considered on merits challenging the impugned order of assessment.
[3.0] It is not in dispute that the Assessing Officer passed the assessment order treating the installation of the lift as a deemed sale and therefore, accordingly levied the tax under the Gujarat Value Added Tax Act. It is not in dispute that subsequently the Hon'ble Supreme Court in the case of Kone Elevators India Private Limited vs. State of Tamil Nadu reported in (2014)7 SCC 1 has held the similar transaction as "Works Contract". The similar transaction / installation of lift is held to be "Works Contract" in the case of very assessee. The aforesaid is not disputed by Shri Vora, learned Assistant Government Pleader appearing on behalf of the State. Under the circumstances, the Assessing Officer now is required to take a fresh decision in light of the decision of the Hon'ble Supreme Court in the case of Kone Elevators India Private Limited (Supra), by which a similar transaction / installation of the lift is treated to be "Works Contract".
[4.0] In view of the above and the decision of the Hon'ble Supreme Court in the case of Kone Elevators India Private Limited (Supra), present Special Civil Application is allowed. Impugned assessment order Page 2 of 3 HC-NIC Page 2 of 3 Created On Thu Dec 22 00:01:15 IST 2016 C/SCA/4638/2011 JUDGMENT treating the installation of the lift as a deemed sale and consequently levying the tax under the Gujarat Value Added Tax Act and the consequent demand are hereby quashed and set aside. Matter is remanded to the Assessing Officer to take an appropriate decision afresh in accordance with law and on merits and considering the decision of the Hon'ble Supreme Court in the case of Kone Elevators India Private Limited (Supra). Rule is made absolute to the aforesaid extent. No costs.
Sd/ (M.R. SHAH, J.) Sd/ (B.N. KARIA, J.) Ajay Page 3 of 3 HC-NIC Page 3 of 3 Created On Thu Dec 22 00:01:15 IST 2016