2022 (1) TMI 255 - HC - VAT and Sales Tax

Validity of assessment orders issued under section 25 of the Kerala Value Added Tax Act, 2003 - rejection of claim of input tax credit for tax paid on capital goods in terms of Rule 13 of the Kerala Value Added Tax Rules, 2005 - assessment years involved in the former writ petition are 2015-16, 2016- 17 and 2017-18 - HELD THAT - The question whether Ext.P1 agreement is a composite agreement for a works contract or whether it is purely an agreement without any transfer of property involved in it, is a mixed question of fact and law. Though the agreement is termed as an agreement for the supply of Hydrogen, Nitrogen and Steam, the assessing officer has relied on various circumstances to regard the agreement as a works contract. The correctness or otherwise of the circumstances relied upon by the assessing officer in the impugned assessment orders, certainly require a detailed appreciation of facts. Merely because the amount involved in the order of assessment is large or merely because the nomenclature used in the agreement is as an agreement for supply, those by themselves are not sufficient justification to invoke the jurisdiction under Article 226 of the Constitution of India. It is relevant to observe that the impugned assessment orders were issued on 15.07.2021 and W.P.(C) No.17451 of 2021 was filed on 13.08.2021 while W.P.(C) No.18783 of 2021 was filed on 03.09.2021. Both these writ petitions were pending consideration before this Court at the admission stage itself, from the aforesaid date till today. Since this Court has expressed its disinclination to entertain these two writ petitions, the period spent by the petitioner before this Court, in these two writ petitions, must be permitted to be excluded while calculating the limitation period for filing the appeals as directed. Hence, It is declared that petitioner will be entitled to seek exclusion of time for the period spent by the petitioner pursuing these two writ petitions while pursuing the statutory remedy of appeals. There are no reason to interfere with the impugned orders in the exercise of jurisdiction under Article 226 of the Constitution of India - petition dismissed.

Summary

Issues:
Challenging assessment orders under the Kerala Value Added Tax Act, 2003 and rejection of input tax credit for tax paid on capital goods.

Analysis:
1. The petitioner, a company engaged in the manufacture and sale of industrial gases, challenged assessment orders issued under section 25 of the Kerala Value Added Tax Act, 2003. The petitioner contended that the tax imposed on them was based on the assumption that the supply of industrial gases under the agreement was part of a works contract. The petitioner also challenged the rejection of input tax credit for tax paid on capital goods, alleging that the assessing officer wrongly considered the agreement as a works contract.

2. The petitioner argued that the assessment orders were issued without jurisdiction and that the condition precedent for tax levy under section 6(1)(f) of the Act, involving the transfer of property in the execution of works contract, did not apply in their case. The petitioner relied on various legal precedents to support their argument that the jurisdictional fact of transfer of property was non-existent in their situation, warranting interference under Article 226 of the Constitution of India.

3. The Senior Government Pleader, on the other hand, contended that the jurisdictional fact of transfer of property in the alleged works contract could only be determined by appreciating disputed questions of fact. The assessing officer had referred to various circumstances in the assessment orders to support the conclusion that the agreement constituted a works contract, justifying the tax imposition.

4. The Court held that the determination of whether the agreement was a composite works contract or a simple agreement without property transfer involved a mixed question of fact and law. The Court emphasized that the assessment orders required a detailed appreciation of facts and that the petitioner should pursue the statutory remedy of appeal instead of invoking Article 226 jurisdiction.

5. Considering the existence of alternative remedies, the Court held that the petitioner must avail the statutory appeal process against the assessment orders. The Court dismissed the writ petitions, allowing the petitioner to seek the exclusion of time spent pursuing the writ petitions while calculating the limitation period for filing appeals. The liberty to pursue the statutory remedy of appeal was reserved for the petitioner.