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Per : Justice Vivek Rusia Since the controversies involved in the above cases are between the same parties, with the joint request of the parties, they are analogously heard and decided by this common order.

By way of these petitions filed under Article 226 of the Constitution of India, the petitioner has called into question the legality of assessment and revisional orders passed under the Madhya Pradesh Commercial Tax Act, 1994 treating its Build - Operate - Transfer (in short 'the BOT' scheme as works contracts and holding them liable to pay the commercial as well as entry tax. The challenge is on the ground that there was no actual sale or no transfer of property or goods during the relevant assessment years, and that there was no taxable turnover or business activity until the commencement of toll collection, which only started from 07.06.2001. These writ petitions relate to the assessment years 2000-2001. FACTS OF THE CASE

02. The petitioner is a company engaged in the business of infrastructure development and in particular related to the construction and maintenance of roads and highways under the BOT scheme.

2.1. In the year 2000, the petitioner was awarded two separate infrastructure contracts by the State Authorities. The first project was granted by the Public Works Department (PWD), Katni Division, NEUTRAL CITATION NO. 2025:MPHC-IND:12661 W.P. No.372 of 2005 & three other under Agreement No. 6/DL/2000-2001 vide Work Order dated 08.05.2000 for the construction of the Katni Bypass (Pureni- Khirehni) road having a length of 7.6 km. The second project was awarded by the Madhya Pradesh State Industrial Development Corporation (MPSIDC) vide letter dated 13.11.2000 for the development and maintenance of a 27 km road between Mhow and Ghatabillod.

06. The aforesaid submission was rightly rejected by the Assessing Authority. There is no such transfer of ownership or deemed ownership in favour of the contractor during the construction of the road and during the concessional period under the BOT scheme. The Government always remains the owner of the land both in works contracts or in BOT, and only possession is given to the contractor to construct the road and recover the cost of construction from the public or passengers by way of toll. As held by the Division Bench of this Court in the case of Ashoka Infraways Private Limited v/s The State of Madhya Pradesh & Others (Writ Petitions No.2883 of 2008), apart from the Government, no one has the authority to collect the toll or service charges from any person. If that authority has been given to the contractor in the BOT scheme, instead of making direct payment for the construction of the road, there would be no escape from the tax liability on the contractor.

11. Section 2(t) of the Act of 1994 defines 'sale' means a transfer of property in goods for cash or deferred payment or for other valuable consideration. In a works contract, the contractor, while constructing a road submits a running bill to the Government and the Government pays the bill from time to time, but under BOT scheme, the contractor does not submit bills to the Government instead invests its own money in the purchase of raw materials to construct the road. In lieu of payment of running bills, the Government gives authority to the contractor to recover the cost of construction by collecting a toll during the concessional period. Therefore, instead of payment in cash, there is a provision in the BOT for deferred payment or other valuable consideration. As per this definition, there is a payment of the contractor by way of toll on a deferred period i.e. concessional period. Section 2(t)(ii) says that a transfer or property in goods, whether as goods or in some other form, is involved in the execution of a works contract. Construction of a road, no doubt, is a works contract, but instead of adopting the procedure applicable in a normal works contract, new methodology has been adopted i.e. build, operate and transfer. By way of agreement between the Government and the contractor, it is agreed that the Government shall provide a place or land for the construction of the road, the contractor will invest its money for the construction of the road and thereafter, recover by way of toll. The Government, instead of making payment directly for the construction of the road, gives the right to the contractor to recover the costs by way of toll during the concessional period.