2009 (9) TMI 910 - HC - VAT and Sales Tax

Whether the Tribunal was justified in holding that the work executed by the respondent viz. supplying and applying hot white thermoplastic road marking paint marking of pedestrian crossing zebra crossing etc. with white and yellow paints on road constitutes civil works within the meaning of section 7(7) of the Kerala General Sales Tax Act 1963 entitling the respondent for payment of tax at compounded rate at two per cent? Held that - Even though the contention of counsel for the respondent agreed that paint marking on the highway is a requirement for opening the highway for traffic under the instruction issued by the Ministry of Surface Transport such marking does not constitute part of the construction of the road. In the first place marking is done after completion of the construction of the road and it is awarded under separate contract. In fact the existing roads are also marked with paints and it is invariably done when the road is declared as national highway or State highway. Therefore paint marking is essentially a regulation introduced for smooth and safe vehicular traffic and it is not a part of road as a structure. In fact ever so many roads are constructed and maintained in the State without any paint marking whatsoever. It cannot be said that such roads are maintained without completion of the construction. In our view marking of the road is not part of the construction of the road and it is a post construction work done for safe vehicular movement and the purpose is to guide the drivers and pedestrians using the road. Revision allowed.

Summary

Issues:
1. Interpretation of whether the work executed by the respondent constitutes civil works under the Kerala General Sales Tax Act.
2. Determination of entitlement for payment of tax at a compounded rate of two per cent under section 7(7) of the KGST Act.
3. Analysis of whether the work done by the respondent is part of the construction of the road for concessional tax rate eligibility.

Issue 1: Interpretation of Civil Works:
The High Court examined whether the work performed by the respondent, involving the supply and application of hot white thermoplastic road marking paint, qualifies as civil works under the Kerala General Sales Tax Act. The State contended that the paint marking was a separate contract executed post-road construction, while the respondent argued that it was an integral part of the road construction. The Tribunal supported the respondent's view, stating that road marking is necessary for national highways, making it part of the construction process. The court analyzed the definition of civil works under section 7(7) of the KGST Act, emphasizing that exclusions like painting apply to existing structures, not construction projects. It clarified that items like painting within a construction contract are considered civil works, entitling the respondent to the compounded tax rate.

Issue 2: Entitlement for Compounded Tax Rate:
The court delved into the eligibility criteria for the compounded tax rate of two per cent under section 7(7) of the KGST Act. It highlighted that the provision applies to contractors engaged in civil works, including construction, repair, or maintenance of specified structures. The court differentiated between maintenance works excluded from civil works and construction-related activities like painting, which are considered part of civil works. It emphasized that if painting is integral to the original construction contract, it falls under civil works, warranting the lower tax rate. The court's analysis focused on the nature of the work and its relationship to the overall construction project to determine tax entitlement.

Issue 3: Construction of Road vs. Road Marking Work:
The court addressed whether the road marking work executed by the respondent constituted part of the road construction, impacting tax entitlement. The State argued that road construction was complete before the marking work, while the respondent claimed that marking was essential for road functionality. The court acknowledged the importance of road marking for traffic regulation but concluded that it was a post-construction activity awarded under a separate contract. It highlighted that road marking is not a structural component of roads, as evidenced by existing roads without paint markings. The court ruled in favor of the State, overturning the Tribunal's decision and confirming the assessment upheld in the first appeal.

In conclusion, the High Court's judgment clarified the interpretation of civil works, eligibility for the compounded tax rate, and the distinction between road construction and post-construction road marking work under the Kerala General Sales Tax Act.