Kerala High Court
M/S.Kone Elevator India (Private) Ltd vs The State Of Kerala on 24 October, 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. 23768 of 2013 (U)
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PETITIONER(S):
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M/S.KONE ELEVATOR INDIA (PRIVATE) LTD,
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 SECRETRIAT,
THIRUVANANTHAPURAM.
2. ASSISTANT COMMISSIONER,
COMMERCIAL TAXES, SPECIAL CIRCLE II,
ERNAKULAM, KOCHI- 682 015.
BY GOVERNMENT PLEADER SRI.BOBBY JOHN.
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 21-07-2014
ALONG WITH W.P.(C) 25397/2013, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
rvs/
WP(C).No. 23768 of 2013 (U)
APPENDIX
PETITIONER(S)' EXHIBITS :
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EXHIBIT P1 TRUE COPY OF THE ORDER OF THE HON'BLE SUPEREME COURT IN WPC
528/2005 DATED 24-10-2005.
EXHIBIT P2 TRUE COPY OF THE REFRERENCE ORDER PASSED BY THE HON'BLE SUPREME
COURT IN WPC NO 232/2005 DATED 13-02-2008.
EXHIBIT P3 TRUE COPY OF THE ORDER OF THE HON'BLE SUPREME COURT IN SLP
(CIVIL) NOS 14961-14967/2005 DATED 29-08-2005.
EXHIBIT P4 TRUE COPY OF THE ORDER OF THE HON'BLE SUPREME COURT SLP
(CIVIL), NOS 21101-21102/2007 DATED 11-01-2008.
EXHIBIT P5 TRUE COPY OF THE LETTER ISSUED BY THE 2ND RESPONDENT FOR THE
YEARS 2003-2004 AND 04-05 DATED 23-02-2012.
EXHIBIT P6 TRUE COPY OF THE JUDGMENT IN WPC NO 9981/2013 DATED 09-04-2013.
EXHIBIT P7 TRUE COPY OF THE NOTICE UNDER SECTION 67(1) OF THE KVAT ACT
ISSUED BY THE INTELLIGENCE OFFICER (IB), DATED 13-02-2008.
EXHIBIT P8 TRUE COPY OF THE ORDER IN WPC NO 11911/2008 DATED 08-04-2008.
EXHIBIT P9 TRUE COPY OF THE ORDER APSSED BY THE 2ND RESPONDENT DATED FOR
THE YEAR 2010-11 DATED 14-08-2013.
EXHIBIT P10 TRUE COPY OF THE ORDER OF THE HON'BLE SUPREME COURT IN WPC NO
398/2011 DATED 16-09-2011.
EXHIBIT P11 TRUE COPY OF THE ORDER OF THE HON'BLE SUPREME COURT IN WPC NO.
145/2013 DATED 01-04-2013.
EXHIBIT P12 TRUE COPY OF THE DEMAND NOTICE IN FORM NO 12 ISSUED BY THE 2ND
RESPONDENT FOR THE YEAR 2010-11 DATED 14-08-2013.
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) Nos. 23768 of 2013
& 25397 of 2013
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Dated this the 21st day of July, 2014
J U D G M E N T
In these Writ Petitions 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) Nos. 23768 of 2013 & 25397 of 2013 2 works contract is attracted. In such circumstance, both the Writ Petitions are 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 Petitions, they were filed against the assessment orders. 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, appeals were filed from the assessment orders, 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 assessments completed, as sale, cannot be sustained. The petitioner shall produce a certified copy of this judgment before the assessing officer within a period of three weeks from today. The assessing W.P.(C) Nos. 23768 of 2013 & 25397 of 2013 3 officer shall assess the supply and installation of lifts/elevators as a works contract and pass assessment orders with respect to that, for the respective years after affording an opportunity of hearing to the petitioners. The assessment orders produced in the respective Writ Petition Ext.P9 (2010-11) in W.P.(C) No. 23768 of 2013 and Ext.P7 (2011-12) in W.P.(C) No. 25397 of 2013 are 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