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. 25382 of 2013 (W)
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PETITIONER(S)/PETITIONER:
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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)/RESPONDENTS:
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1. THE STATE OF KERALA,
REPRESENTED BY ITS SECRETARY TO TAXES DEPARTMENT
GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001.
2. ASSISTANT COMMISSIONER(ASSESSMENT),
COMMERCIAL TAXES, SPECIAL CIRCLE-II, ERNAKULAM
PIN-682015.
R 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:
WP(C).No. 25382 of 2013 (W)
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APPENDIX
PETITIONER(S)' EXHIBITS
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EXT.P1 TRUE COPY OF THE ORDER OF THE HON'BLE SUPREME COURT IN
W.P(C)528/2005 DATED 24.10.2005.
EXT.P2 TRUE COPY OF THE REFERENCE ORDER PASSED BY THE
HON'BLE SUPREME COURT IN W.P(C) 232/2005 DATED 13.02.2008.
EXT.P3 TRUE COPY OF THE ORDER OF THE HON'BLE SUPREME COURT
SLP(CIVIL)NOS 14961-14967/2005 DATED 29.08.2005
EXT.P4 TRUE COPY OF THE ORDER OF THE HON'BLE SUPREME COURT
SLP(CIVIL)NOS 21101-21102/2007 DATED 11.01.2008.
EXT.P5 TRUE COPY OF THE NOTICE NO.32070391244/2010-11 ISSUED BY
2ND RESPONDENT DATED 19.09.2013.
EXT.P6 TRUE COPY OF THE NOTICE NO.32070391244/2011-12 ISSUED BY
2ND RESPONDENT DATED 01.10.2013
EXT.P7 TRUE COPY OF THE NOTICE UNDER SECTION 67(1)OF THE KVAT
ACT ISSUED BY THE INTELLIGENCE OFFICER(IB),DATED
13.02.2008.
EXT.P8 TRUE COPY OF THE ORDER IN WP(C)11911/2008 DATED 08.04.2008.
EXT.P9 TRUE COPY OF THE ORDER IN WP(C) 9981/2013 DATED 09.04.2013.
EXT.P10 TRUE COPY OF THE ORDER IN WP(C)23768/2013 DATED 30.09.2013.
RESPONDENT(S)' EXHIBITS: NIL
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// TRUE COPY //
P.A TO JUDGE.
SB
K. VINOD CHANDRAN, J.
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W.P.(C) No. 25382 of 2013
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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. 25382 of 2013 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, it was filed against the notices for imposition of penalty. This Court had granted a conditional stay of operation of the notices. Following the dictum of the Honourable Supreme Court in the aforecited decision, it has to be held that the penalty completed, cannot be sustained. Exhibits P5 and P6 notices are hence set aside. The petitioner shall produce a certified copy of this judgment before the officer.
The Writ Petitions stand allowed on the aforesaid terms.
Sd/-
K. VINOD CHANDRAN, JUDGE SB // True Copy // P.A To Judge.