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TMI Blog2022 (1) TMI 255X X X X Extracts X X X X X X X X Extracts X X X X ..... rty 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... paid on capital goods in terms of Rule 13 of the Kerala Value Added Tax Rules, 2005 (for short 'the Rules'). The assessment years involved in the former writ petition are 2015-16, 2016- 17 and 2017-18. 2. Petitioner is a company engaged in the business of manufacture and sale of industrial gases and is a dealer registered under the Act. As part of increasing the refining capacity of the Kochi Refineries of the Bharat Petroleum Corporation Ltd. (for short 'BPCL), it was decided to implement a project for constant and uninterrupted supply of industrial gases like hydrogen, nitrogen and HP steam. Pursuant to an invitation for tender floated by BPCL to supply industrial gases, an agreement was entered into on 21.08.2013 between pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eging that the rejection was on a wrong assumption that the agreement under which the petitioner supplies industrial gases to BPCL, is a works contract. 6. I have heard Sri. P.S.Sreeprasad, the learned counsel for the petitioner as well as Dr.Thushara James, the learned Senior Government Pleader for the respondent. 7. Adv. Sreeprasad vehemently argued that the assessment orders were issued without jurisdiction, warranting interference under Article 226 of the Constitution of India. According to the learned counsel, the condition precedent for levy of tax under section 6(1)(f) of the Act is transfer of property in the execution of works contract, which is nonexistent in the instant case. The learned counsel further contended that, the agre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... acts without jurisdiction or in excess of jurisdiction, this Court can, in exercise of its powers under Article 226 of the Constitution of India interfere and issue a writ of certiorari. The jurisdictional fact, as held in Arun Kumar and Others v. Union of India and Others [(2007) 1 SCC 732] is a fact which must exist before the authority assumes jurisdiction over a particular matter. When the existence of the jurisdictional fact can be decided only by an appreciation of disputed questions of fact, necessarily the parties are to be relegated to the appellate remedy under the statute. 10. A reading of the impugned assessment orders reveal that the assessing officer has referred to various circumstances for arriving at the conclusion that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nnected with the question involved in W.P.(C) No.17451 of 2021 and hence in the said case also, petitioner must be relegated to the statutory remedy of appeal. 13. As held in the decisions in Union of India and Another v. Guwahati Carbon Limited [(2012) 11 SCC 651] and Assistant Commissioner of State Tax and Others v. Commercial Steel Limited [(2021) SCC Online 884] existence of alternative remedy is a factor to be considered by the writ court before exercising its jurisdiction. The remedy of an assessee against an assessment order is to prefer a statutory appeal and pursue remedies available under law and not to invoke the jurisdiction under Article 226 under the guise of a proclaimed jurisdictional question. On a consideration of the cir ..... X X X X Extracts X X X X X X X X Extracts X X X X
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