M.S. Kumarasamy vs State of Tamil Nadu

Chitra Venkataraman, J.—This tax case revision, filed at the instance of the assessee, relating to the assessment year 1999-2000 was

admitted on the following substantial questions of law:

(1) Whether the Appellate Tribunal is right in confirming the levy of tax on the estimated sale value of shutters, when the materials used in the

contract, namely, iron and steel items, were purchased from locally registered dealers on payment of tax?

(2) Whether the Appellate Tribunal is right in its conclusion that tax is leviable at the time of transfer of property in goods and at such time, what

was transferred is the shutters and hence tax ought to be levied on the shutters used in the works contract of rehabilitation of distributaries and D1

Sluices?

(3) Is not the Appellate Tribunal wrong in overlooking the fact that u/s 3B of the Tamil Nadu General Sales Tax Act, 1959, the levy of tax is on the

transfer of property in goods, whether in the same form or in some other form and therefore it is not correct to estimate the sale value of shutters

on the ground that the iron and steel items used in the execution of the contract have changed their form into the shutters? and

(4) Whether the Appellate Tribunal is right in overlooking the fact that the shutters made out of the iron and steel items axe only an intermediate

product that have emerged during the process of execution of the works contract and hence there is no scope for levy of tax on the same?

The assessee is a civil contractor. During the assessment year 1999-2000, he entered into an agreement with the Superintending Engineer,

WRO/PWD, Parambikulam Aliar Basin Circle, for rehabilitation of distributaries and D1 sluices from 87.40 km to 102.80 km of Parambikulam

Main Canal and Muthanampalayam Distributary of Tiruppur Branch Canal. As part of this work, the assessee had to manufacture 175 Nos. of

gearing shutters according to the specifications; after dismantling, the damaged ones were to be replaced with the newly manufactured shutters,

after necessary earth work and masoning.

The assessee''s case is that it purchased steel items from registered dealers and after processing, it manufactured the shutters and installed them

in the work place under the supervision of the engineers. In the circumstances, being a works contract, the liability on the erection at the

customer''s place would not attract the provisions of the Act. Apart from this, there is also a proposed assessment on the materials used in the

works, such as sand and blue metal at the appropriate rate, they being purchased from unregistered dealers. The assessing officer rejected the

contention of the assessee that the shutters came into existence only in the course of execution of the works contract. Thus, the value of the shutters

was brought to tax. While so, the assessing officer also levied penalty u/s 12(3)(b) of the Tamil Nadu General Sales Tax Act.

The assessee preferred an appeal before the Appellate Assistant Commissioner, contending that being an indivisible works contract and that the

shutters came into existence only by way of accretion at the work site, there could be no liability to tax. However, the first appellate authority

dismissed the appeal on the liability, but however allowed the appeal on the levy of penalty.

Aggrieved by this, the assessee went on appeal before the Tamil Nadu Sales Tax Appellate Tribunal. As against the levy of penalty, the

Revenue also went on appeal before the Tribunal. By a common order, the Tribunal dismissed the assessee''s appeal. However on the Revenue''s

appeal on penalty, the Tribunal remanded the matter back to the Assessing Officer for verification, that the officer had not considered tax deducted

at source, which was adjusted on the tax due. Aggrieved by the same, the assessee is on appeal before this court.

We straight away reject the contention of the assessee by following the decision of this court reported in Apparels and Handloom Exporters

Association and Others Vs. State of Tamil Nadu and Others, , which was also considered by us in Tax Case (Revision) No. 1899 of 2006 by

order dated June 6, 2012 (Conveyor Equipment Company Ltd., Chennai v. State of Tamil Nadu rep. by the Deputy Commercial Tax Officer,

Adayar II Assessment Circle, Chennai) as well as in T.C. (R) No. 1977 of 2006 by order dated April 20, 2012 (State of Tamil Nadu rep. by the

Deputy Commissioner of Commercial Taxes, Coimbatore Division, Coimbatore v. Systems Aluminium, Coimbatore). Thus when the nature of

execution of the work demanded that the assessee took the material to the site of the customer and executed the work, it does not mean that there

was no sale of the shutters. Similar issue was also considered by the apex court in the decision reported in State of Andhra Pradesh Vs. Kone

Elevators (India) Ltd., . Following the decision cited above, we have no hesitation in rejecting the tax case filed by the assessee. Consequently, the

order of the Tribunal stands confirmed and the tax case stands dismissed. No costs.