Madhya Pradesh High Court
Waaneep Solar Private Limited vs The State Of Madhya Pradesh on 23 August, 2022
Author: Vivek Rusia
Bench: Vivek Rusia, Amar Nath Kesharwani
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE VIVEK RUSIA
&
HON'BLE SHRI JUSTICE AMAR NATH (KESHARWANI)
ON THE 23rd OF AUGUST, 2022
WRIT PETITION No. 17158 of 2020
Between:-
WAANEEP SOLAR PRIVATE LIMITED THROUGH
AUTHORIZED SIGNATORY PLOT NO. 201, FIRST
FLOOR, OKHLA INDUSTRIAL ESTATE PHASE-III
(DELHI)
SOUTH DELHI 110020 INDIA
.....PETITIONER
(SHRI ADITYA GOYAL, LEARNED COUNSEL FOR THE
PETITIONER )
AND
THE STATE OF MADHYA PRADESH
ADDITIONAL LABOUR COMMISSIONER AND
CESS ASSESSMENT AUTHORITY OFFICE OF THE
LABOUR COMMISSIONER, NEW MOTI
BUNGALOW, MG ROAD, INDORE (MADHYA
PRADESH)
.....RESPONDENTS
(SHRI UMESH GAJANKUSH, LEARNED ADDITIONAL ADVOCATE
GENERAL FOR THE RESPONDENT/STATE)
This petition coming on for orders this day, JUSTICE VIVEK RUSIA
passed the following:
ORDER
Petitioner has filed the present petition being aggrieved by the order dated 09.10.2020 passed by competent authority and Additional Labour Commissioner, Indore whereby the petitioner has been directed to pay an amount of Rs.3.9872 crores as cess payable under the Building & Other Construction Workers' Welfare Cess Act, 1996 (hereinafter referred to as 'the 2 Act of 1996').
Before passing the impugned order, a show cause notice was issued to the petitioner dated 16.01.2018 that the petitioner has undertaken a project worth Rs.250 crores, hence it is liable to pay the cess under the Act of 1996. In response to the show cause notice, the petitioner has submitted a detailed reply admitting the total cost of the project of 50 mega watt solar power project at Ichhawar, Madhya Pradesh at Rs.398.72 crores but submitted that the entire amount was not incurred in the civil work, therefore, the petitioner is not liable to pay the cess on the aforesaid amount. It is further submitted that the petitioner has done total civil working costing Rs.6.25 crores and accordingly an amount of Rs.6,25,182/- has been paid as cess under the Act of 1996. However, learned authority vide impugned order has calculated the cess amount taking into account the entire project cost and imposed the liability of Rs.3.9872 crores, hence the present petition before this Court.
The respondent has filed a reply raising a preliminary objection about the maintainability of the writ petition for want of remedy of appeal under section 11 of the Act of 1996.
Learned counsel for the petitioner submits that during the pendency of this petition the Apex Court has examined a similar issue in the case of Uttar Pradesh Power Transmission Corporation Limited and another vs. CG Power and Industrial Solutions Limited and another reported in (2021) 6 SCC 15 and held that the cess under the Cess Act read with BOCW is leviable in respect of building and other construction works. The condition precedent for imposition of cess under Cess Act is construction, repair, demolition or maintenance of and/or in relation to a building or any other work of construction, transmission towers etc., therefore, the imposition of cess of 3 Rs.3.9872 crores is highly arbitrary, irrational and contrary to the aforesaid judgment and is liable to be set aside.
Shri Umesh Gajankush, learned Additional Advocate General after going through the judgment passed by the Apex Court in the case of Uttar Pradesh Power Transmission Corporation (supra) submits that the liability is to be imposed under the Act of 1996 only on civil construction work and not on the basis of the total project cost, however, he submits that the petitioner has declared the civil construction cost valued at Rs.6,25,18,191/- that requires verification by the authority, hence matter may be remanded back to the competent authority to decide the actual cost incurred on construction work covered under the Act of 1996.
Shri Goyal, learned counsel for the petitioner submits that the petitioner has submitted all the documents along with the reply to show that the total construction cost incurred by the petitioner is only Rs.6,25,18,191/-.
In view of the aforesaid discussion and the law laid down by the Apex Court, the impugned order is unsustainable and is accordingly set aside. The matter is remanded back to the competent authority to examine the actual cost incurred by the petitioner in civil work and to calculate the cess amount payable by the petitioner accordingly.
The writ petition stands disposed of.
C.c as per rules.
(VIVEK RUSIA) (AMAR NATH (KESHARWANI))
JUDGE JUDGE
hk/ Digitally signed by HARI KUMAR
C G NAIR
Date: 2022.08.23 18:35:10 +05'30'