ORDER : P.R. Ramachandra Menon, J. Whether the consequential order passed by the assessing authority pursuant to the remand ordered by the First Appellate Authority can survive on its own, if the order passed by the First Appellate Authority remanding the matter is set aside by the Second Appellate Forum, restoring the original order; is the point to be considered in this Revision Petition. 2. The petitioner, who is a PWD Contractor, was an assessee on the rolls of the Assessing Authority, Malappuram (Commercial Tax Officer (WC & LT), Malappuram) and he later came to be within the jurisdiction of the Assessing Authority at Thiruvananthapuram (Commercial Tax Officer [Works Contract], Thiruvananthapuram). In connection with the transactions for the year 2008-2009, the petitioner submitted return declaring a total turn over of Rs.10,95,30,373/- and taxable turn over of Rs. 1,60,04,508/-. On scrutiny, the said return was rejected and it was proposed to effect assessment on 'Best Judgment Basis' under Section 25(1) of the KVAT Act. This was mainly due to the fact that the value of the "work in progress" at the close of the year was not included as part of the turn over for the year and further, the vouchers issued towards 'hire charges' and 'labour charges' were found as 'self prepared' and not liable to be accepted. After affording an opportunity of hearing, the proceedings were finalised as per Annexure I Assessment order dated 30.06.2011, whereby the total turn over was fixed, adding the value of 'work in progress ' and also disallowing 15% of the 'hire charges' and 10% of the 'labour charges', to be included as part of the turn over. The assessment was finalised accordingly, fixing the balance tax payable as Rs.22,15,230/- and interest as Rs.5,75,960/-. 3. The above order was challenged by the petitioner by preferring an appeal before the First Appellate Authority. The contention raised was that, by virtue of Rule 9(c) of the KVAT Rules, 'work in progress' was not liable to be included as part of the turn over and that no amount was received by the petitioner/assessee towards the 'work in progress' reckoned by the Assessing Authority in the particular financial year. It was also contended that there was absolutely no rhyme or reason for the Assessing Authority to have disallowed 15% of the 'hire charges' and 10% of the 'labour charges'. 4. It was also contended that there was absolutely no rhyme or reason for the Assessing Authority to have disallowed 15% of the 'hire charges' and 10% of the 'labour charges'. 4. The First Appellate Authority, after hearing, passed Annexure II order dated 27.06.2012, whereby it was held that the value of 'work in progress' was not liable to be included as part of the turn over. The said authority also held that when the Assessing Authority had disallowed only 10% of the 'labour charges', there was no rationale in disallowing a higher extent of 15% in the case of 'hire charges', which hence was held as arbitrary. Accordingly, the dis-allowance of 15% of 'hire charges' was reduced to be 10%. The Assessing Authority was directed to effect re-assessment based on the observations and finding in Annexure -II order. 5. While so, the Intelligence Officer found that the entire value of the materials in respect of the goods supplied by the Department were never reflected in the accounts and accordingly, penalty was proposed to be imposed. After completing the procedural formalities, the Intelligence Officer passed orders imposing penalty, which made the petitioner to challenge the same by filing W.P.(C)No. 12137/2012 before this Court, wherein interference was declined. The verdict passed by the learned single Judge was challenged in W.A.No.1242/2012. When the appeal came up for consideration before the Division Bench, it was brought to the notice of the Bench that the assessment was still to be completed in view of the subsequent developments. In the said circumstance, Annexure -IV interim order was passed by the Bench on 03.07.2012, whereby the Assessing Officer was directed to complete the assessments and produce copies of the orders before the Court to consider whether the orders imposing penalty could be held as tenable. 6. It is borne out from the proceedings that the files had already been transferred from the office of the Assessing Officer, Malappuram to the Assessing Officer, Thiruvananthapuram and the latter considered the matter and passed Annexure-VI order dated 15.04.2013, reckoning the value of work in progress as well, as part of the turn over and also reckoning the extent of suppression detected by the Intelligence Officer, as pointed out in the penalty order, involving value of materials [Rs.934089/-], received in the Department. By virtue of the said order, the taxable turn over was fixed as Rs.32269850/-. By virtue of the said order, the taxable turn over was fixed as Rs.32269850/-. It is stated that the petitioner has satisfied the liability under Annexure VI order. 7. When the Writ Appeal came up for further consideration, the subsequent developments were brought to the notice of the Bench, whereupon, orders imposing penalty were set aside, holding that the penalty proceedings for the years 2005-06 to 2008-09 were to be re-considered after completing the assessment proceedings for the year 2005-06 as well. The appellant/petitioner was also directed to produce the Books of accounts and all necessary documents even without any notice, within one month; also making it clear that nothing was expressed on merit, as to the assessment or the penalty proceedings. 8. As a matter of fact, the State/Department was not at all happy with Annexure II order passed by the First Appellate Authority, setting aside Annexure I order and ordering remand, directing to modify the assessment, excluding the value towards 'work in progress' and also interfering with the extent of dis-allowance in respect of 'hire charges'. It was accordingly that Annexure III appeal was preferred, which was pending consideration before the Tribunal even as on the date of passing of Annexure VI order by the Assessing Officer for the year 2008-09. After hearing both the sides, the Tribunal held as per Annexure VII order, that the view taken by the First Appellate Authority excluding the value of 'work in progress' from the Turn over was not correct, by virtue of the mandate of Rule 9(c) of the KVAT Rules, which specifically made a reference to the contract amount received or amount receivable. It was also observed by the Tribunal, that the records did not reveal that the First Appellate Authority had verified the vouchers and as such, there was absolutely no reason for making any interference with the order passed by the Assessing Authority dis-allowing 15% of the 'hire charges' and reducing the same to 10%. It was also observed by the Tribunal, that the records did not reveal that the First Appellate Authority had verified the vouchers and as such, there was absolutely no reason for making any interference with the order passed by the Assessing Authority dis-allowing 15% of the 'hire charges' and reducing the same to 10%. It was accordingly, that Annexure II order passed by the First Appellate Authority was set aside and Annexure I order passed by the Original Assessing Authority was restored on 29.12.2015.The petitioner approached the Tribunal by way of Annexure VIII Rectification Petition, filed under Section 66 of the KVAT Act, pointing out that the appeal pending before the Tribunal had virtually become infructuous by virtue of Annexure VI order passed by the Assessing Authority on re-assessment, pursuant to Annexure II remand order passed by the First Appellate Authority and also in the light of Annexure IV interim order and Annexure V final verdict passed by the Division Bench of this Court. It was stated that an omission had occurred on the part of the assessee as well as the Government/Department in bringing the existence of Annexure VI order to the notice of the Tribunal when the appeal was heard on the relevant date, in turn leading to Annexure VII order. 9. The matter was considered in detail by the Tribunal and it was held as per order dated 22.06.2016 passed in Rectification Petition No.3 of 2016 that the idea and understanding of the assessee was thoroughly wrong and misconceived. It was observed that there was absolutely no merit in the contention and the prayer for exclusion of the value of 'work in progress', with reference to the 'particular financial year', as the provision of law was quite clear and there was no ambiguity. It was also observed that the second appeal preferred against Annexure II order was pending, when Annexure VI order was passed by the Assessing Authority. Any proceeding pursued by the Assessing Authority, pursuant to Annexure II order passed by the First Appellate Authority, could only be subservient to the orders to be passed by the Second Appellate Authority, where the second appeal was pending. This being the position, it was only a 'wild fantasy' of the petitioner, in contending that the second appeal had become infructuous. This being the position, it was only a 'wild fantasy' of the petitioner, in contending that the second appeal had become infructuous. It was only on finding that Annexure VI order passed by the Assessing Authority, fixing the taxable turn over as Rs.32269850/- was of lesser magnitude, that the liability under Annexure VI was opted to be satisfied by the assessee. 10. In fact, as per the initial assessment (Annexure I), the balance tax payable after allowing the input and the tax already paid, was Rs.2215230/- and interest was calculated to an extent of Rs.575960/- till 30.06.2015. Coming to Annexure VI order (after Annexure II remand order passed by the First Appellate Authority)the balance tax came to be re-fixed as Rs.422711/- with interest until April 2013 as Rs.54952/-. The Tribunal held that any order passed by the Assessing Authority pursuant to Annexure II remand order passed by the First Appellate Authority could only be subject to and sub-serving to the second appeal pending before the Tribunal and thus it was held that it would be the second assessment order, i.e. Annexure VI, which had to be treated as 'non-est' and not the other one. Annexure VIII application was accordingly found as devoid of any merit and the same was dismissed, which made the petitioner to approach this Court. 11. Despite hearing the learned counsel for the petitioner for considerable time, no provision of law was brought to the notice of this Court, other than the one as mentioned already, to accede to the proposition mooted by the petitioner and to hold that Annexure I order had become 'non-est' and the second appeal filed before the Tribunal had become infructuous, by virtue of passing Annexure VI order pursuant to Annexure II remand order. Similarly, no precedent was brought to the notice of this Court to hold the position in favour of the petitioner. It is well within the right of a litigant to challenge the order, whether Original, Appellate or Revisional, as the case may be, by way of appropriate proceedings, before the appropriate Forum, in accordance with law. Since such a course was pursued in terms of section 60 KVAT Act, by filing a second appeal by the aggrieved party/litigant/State, all further proceedings pursuant to the order challenged would be subject to the outcome of the said proceedings. 12. Since such a course was pursued in terms of section 60 KVAT Act, by filing a second appeal by the aggrieved party/litigant/State, all further proceedings pursuant to the order challenged would be subject to the outcome of the said proceedings. 12. That apart, there is a contention for the State/Revenue that the Assessing Authority was never called upon to pass any assessment order in respect of the assessment year 2008-09 pursuant to Annexure IV interim order or Annexure V final verdict in W.A.No.1242 of 2012, as the issue involved in the W.A was with regard to the penalty proceedings for the years 2005-06 to 2007-08. It was brought on record, that the assessment was not complete in respect of the year 2005-06. It was accordingly, that the penalty proceedings was directed to be finalised after finalisation of the assessment proceedings for the year 2005-06 as well. It is further pointed out that Annexure VI order passed by the Assessing Authority is not in conformity with Annexure II remand order passed by the First Appellate Authority. As per Annexure II order, the First Appellate Authority held that the value towards 'work in progress' was not liable to be reckoned as part of the turn over and it was ordered to be deleted and re-worked accordingly; besides giving such other directions. But as per Annexure VI order, even as admitted by the petitioner, the assessment has been done also reckoning the value towards the 'work in progress'. It is conceded by the petitioner in Ground "C" of the Revision Petition that, it was done so, in terms of the law laid down by the Apex Court in Gannon Dunkerley and Co Larsen and Toubro Limited vs. State of Rajasthan (1993) 88 STC 204 (SC). 13. By virtue of the above ruling, the Apex Court has made it clear that the value of the goods passed on in the case of a work contract had to be arrived at by taking into account, the value of the entire works contract and deducting therefrom the charges towards labour and services which would cover the following: "1. Labour charges for execution of the works, 2. Amount paid to sub-contractor for labour and services 3. Charges for planning, designing and architects fee; 4. Charges for obtaining on hire or otherwise machinery and tools used for the execution of the works contract, 5. Labour charges for execution of the works, 2. Amount paid to sub-contractor for labour and services 3. Charges for planning, designing and architects fee; 4. Charges for obtaining on hire or otherwise machinery and tools used for the execution of the works contract, 5. Cost of consumables such as water, electricity, fuel etc used in the execution of work contract,, i.e., property which is not transferred in the course of execution of a works contract; 6. Cost of establishment of the contractor to the extent it is related to supply of labour and services; 7. Other similar expenses relatable to supply of labour and services; 8. profit earned by the contractor to the extent it is relatable to supply of labour and services." 14. The petitioner has conceded that he has no dispute with regard to Annexure VI Order and that he has satisfied the liability fixed by the Assessing Officer as per Annexure VI, which includes tax in respect of the value towards the 'work in progress' also as part of the taxable turn over. The contention now raised is obviously on finding that the liability mulcted upon the petitioner as per Annexure I( which has been restored as per Annexure VII order passed by the Tribunal) is slightly more than the extent fixed upon him as per Annexure VI (pursuant to Annexure II remand order). Considering the facts and circumstance, the relevant provisions of law and the judicial precedents, this Court finds it difficult to sustain the challenge. The verdict/order passed by the Tribunal vide Annexure VII and IX are perfectly within the four walls of law and not assailable under any circumstance. Revision fails and it is dismissed accordingly.