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2008 DIGILAW 581 (KAR)

GHATGE KARKERA POWER INDUSTRIES v. ADDITIONAL COMMISSIONER OF COMMERCIAL TAXES, ZONE I, BANGALORE.

2008-10-13

C.R.KUMARASWAMY, K.SREEDHAR RAO

body2008
JUDGMENT K. SREEDHAR RAO, J. - The material facts of the case are as follows : The appellant is a manufacturer of diesel generator (DG) sets and other allied products. The appellant's head office is situated at Padubidri in Karnataka. The appellant has a branch office at Goa. The appellant entered into contract with Telecom Department in Karnataka for supply and installation of DG sets in different places in Karnataka. It is the contention of the appellant that the contract although is entered by the head office at Padubidri, the works contract was executed by the branch office at Goa and that the said transaction has been accounted to sales tax at Goa. The assessing authority had found that the transaction has been entered into by the head office, Padubidri and that the contract works have been executed by the head office at Padubidri. Therefore, the transaction of supply and installation of DG sets to Telecom Department is liable for assessment in the State of Karnataka. Accordingly, to the extent of value of DG sets, the assessing authority assessed as a transaction liable for tax under the Karnataka Sales Tax Act, 1957 and directed to pay proportionate tax. The Joint Commissioner in appeal has found that the branch office at Goa has supplied and installed DG sets for the Telecom Department. Therefore, the assessment of tax in respect of the said transaction under the KST Act, is not correct and hence set aside the order of the assessing authority to that extent. The Additional Commissioner in exercise of suo motu power under section 22A of the KST Act, has found that the documentary material prima facie discloses that the contract is entered into by the head office, Padubidri. The branch office procured some of the materials from Pune, supplied it to the head office at Padubidri which in turn executed the contract. Accordingly, held that the transaction is liable for tax under the KST Act. The appellant aggrieved by the said order, has filed this appeal. The appellant mainly relies upon the assessment order under the Goa Sales Tax Act, 1964 - annexure D to contend that the transaction in question has been considered and assessed under the Goa Sales Tax Act. Accordingly, held that the transaction is liable for tax under the KST Act. The appellant aggrieved by the said order, has filed this appeal. The appellant mainly relies upon the assessment order under the Goa Sales Tax Act, 1964 - annexure D to contend that the transaction in question has been considered and assessed under the Goa Sales Tax Act. On plain reading of annexure D, ex facie it does not indicate that the transaction in question has been considered for assessment of tax under Goa Sales Tax Act. It requires detailed scrutiny of the sales tax return filed before the Goa sales tax authority to find out whether the transaction assessed is the subject-matter at annexure D. The learned counsel for the appellant relied upon the decision of this court in the case of State of Karnataka v. ECE Industries Limited [2006] 144 STC 605 to contend that despite the fact that the head office situated in State enters into contract for execution of the works, if the branch office situated in another State executes the works resulting in movement of goods inter-State, the liability of assessment of payment of tax would be at the place where the branch office is situated. Therefore, it is strenuously argued that the transaction cannot be assessed and taxed under the KST Act. The Government Advocate per contra had produced the documentary material to show that the head office of the appellant at Padubidri had entered into contract with Telecom Department and they have signed the contract. It is, therefore, argued that it is the head office which has executed the contract works. The order of the revisional authority is vague. The revisional authority does not refer to the documentary material produced by both the parties. The revisional order makes cryptic reference to the documents produced and concludes that the head office has executed the contract works and there is no inter-State sale. The appellant has supplied DG sets to the head office which executed the contract works. The revisional authority should have referred to all the documentary material produced by the parties to give finding on the fact whether contract works were executed by the branch office or the head office. The revisional authority has failed to refer to the documentary material produced by the parties. The revisional authority should have referred to all the documentary material produced by the parties to give finding on the fact whether contract works were executed by the branch office or the head office. The revisional authority has failed to refer to the documentary material produced by the parties. While hearing this appeal, the counsel for the appellant as well as, the Government Advocate referred to several of the documents to establish their view point. We find that it is not desirable and not possible to express any opinion upon the copies of the documents cited and produced before this court. It is, therefore, just and necessary that the revisional authority shall consider all documentary material produced by the parties, if need be allow the additional documents to be produced by the parties and then decide the question whether the transaction is liable for tax under the KST Act. Accordingly, the order of the revisional authority is set aside. The matter is remanded to the revisional authority to dispose of the case in accordance with law. The revisional authority shall dispose of the case with due opportunity to both the parties within four months from the date of the receipt of this order.