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2019 DIGILAW 1447 (KAR)

L. Sailesh Kumar Contractor And Engineers Consortium, Nellur v. Joint Commissioner Of Commercial Taxes (Admn) Malnad Division, Shimoga

2019-06-27

S.SUJATHA

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JUDGMENT : S.Sujatha, J. The petitioner has assailed the order of the respondent No.1 passed under Section 63-A(1) of the Karnataka Value Added Tax Act, 2003 ('KVAT Act') relating to the assessment periods 2008-09, inter alia, seeking a direction to respondent Authorities to adjust the tax paid by the main contractor towards the tax liability of the petitioner (sub-contractor) as per the TDS Certificate and further direct the respondent authorities not to recover any tax amounts from the petitioner insofar it pertains to the execution of sub- contract works of the petitioner relating to the tax periods 2008-09. 2. The petitioner is a partnership concern and engaged in the business of executing of civil works contract and registered as a dealer under the provisions of the KVAT Act borne on the file of LVO-240, Hassan. The petitioner has opted for the benefit of composition scheme under Section 15(1) of the KVAT Act. During the assessment period 2008-09, the petitioner has executed the civil works contract as sub-contractor on behalf of one Sri. T. Suresh Kumar Reddy [main contractor], who is also a registered dealer under the KVAT Act on the file of the LVO-250, Chikmagaluru. 3. During the assessment period in question the said Sri. T. Suresh Kumar Reddy was awarded the work contract by the Senior Assistant Financial Advisor (Construction), S.W. Railway, Bangalore Cantonment to execute the work of construction of Railway bridge/Railway under bridge and connected works relating to which the petitioner has executed the subcontract work awarded by the main contractor to the extent of Rs.1,63,25,684/- and the main contractor has received the total contract receipt amount from Railway Department and TDS was deducted to the entire extent of the amount received, Form VAT-156 was issued in favour of the main contractor. 4. Respondent No.2 has initiated reassessment proceedings by issuing notice with respect to the petitioner. In response to the same, the petitioner has produced all the relevant books of accounts and objections. Respondent No.2 considering the same concluded the reassessment, granting deduction towards the tax amount deducted in the account of the main contractor based on the TDS certificates issued. 5. Respondent No.1 Joint Commissioner of Commercial Taxes (Admn.,) has initiated suo moto revision proceedings to revise the said reassessment order as the same being erroneous and prejudicial to the interest of revenue and finally passed the order dated 06.05.2019. 5. Respondent No.1 Joint Commissioner of Commercial Taxes (Admn.,) has initiated suo moto revision proceedings to revise the said reassessment order as the same being erroneous and prejudicial to the interest of revenue and finally passed the order dated 06.05.2019. Accordingly, the reassessment order was modified fixing the tax liability on that portion of the amount relating to the sub-contractor. Being aggrieved by the same, the petitioner is before this Court. 6. Learned counsel Sri. K.M. Shivayogiswamy appearing for the petitioner vehemently argued that in terms of the order passed by this Court in W.P.No.1517/2016 and allied matters (D.D. 20.01.2016), the respondent - Authorities are required to adjust the tax already collected from the principal contractor in respect of the liability fastened on the petitioner being sub-contractor, wherein reliance was placed on the Division Bench judgment of this Court in the case of Warsaw Engineers, Bangalore vs. The Additional Commissioner of Commercial Taxes, 2008 64 KarLJ 1134. 7. Learned counsel for the revenue would contend that no writ petition is maintainable against the impugned order without exhausting the alternative and efficacious remedy of appeal available under the KVAT Act. It was further contended that in terms of Rule 44(3)(f) of the Karnataka Value Added Tax Rules, no tax deducted by issuing Form VAT-156 or Form VAT-158 or Form VAT-161 can be transferred to any other person. Such set off can be given only to the main contractor to whom Form VAT-156 was issued and not to any subcontractor. Reliance was placed on the Division Bench judgment of this Court in S.T.A.No.100013/2015 (D.D. 12.12.2017). It was submitted that the main contractor had claimed exemption as per the returns in Form VAT- 120 and as such the petitioner is not entitled to, for the credit of tax deducted as per Form VAT-156 issued in favour of the main contractor. Whereas in the case of Warsaw Engineers, supra, the principal contractor in its annual return filed, had included the amount paid to the sub-contractor and the sub-contractor also had paid tax on that turnover. 8. Heard the learned counsel for the parties and perused the material on record. 9. The issue involved herein is a mixed question of fact and law. It is not appropriate to examine the issues involved on the factual aspects when an effective mechanism is provided by the legislature for adjudicating such issues. 8. Heard the learned counsel for the parties and perused the material on record. 9. The issue involved herein is a mixed question of fact and law. It is not appropriate to examine the issues involved on the factual aspects when an effective mechanism is provided by the legislature for adjudicating such issues. In the circumstances, this Court is not inclined to entertain the writ petition. 10. Hence, the writ petition stands dismissed with liberty to the petitioner to avail the alternative and efficacious remedy of appeal available under the KVAT Act. If such an appeal is filed within a period of two weeks from the date of receipt of certified copy of the order, the same shall be considered by the Appellate Tribunal in accordance with law, without objecting to the period of limitation.