Sree Balaji Pipes and Accessories vs State of Kerala

K.K. Usha, J.—Revision petitioner is an assessee under the Kerala General Sales Tax Act, 1963. Relevant assessment year is 1994-95. Even though, the questions of law arising in this case are not specifically raised in the revision memorandum, learned counsel for the revision petitioner raised, two contentions before us, namely, that the G.I. pipes and fittings, etc., sold by the assessee are declared goods coming under the Second Schedule to the Kerala General Sales Tax Act and therefore, liable to be taxed at 4 per cent and that since the sale is exclusively to the Kerala Water Authority, assessee is entitled to exemption as per the provisions contained under S.R.O. No. 1728 of 1993.

We heard learned counsel for the petitioner as well as learned Government Pleader. The first contention raised by the assessee is not liable to be accepted since the particular item, namely, steel tubes, etc., was brought under the Second Schedule in SI. No. 2 after sub-item (i) only by the Finance Act 5 of 1995, after it had been omitted by the Kerala Finance Act, 1994. Therefore, for the relevant assessment year 1994-95, this particular item was not included in the Second Schedule. Thus, the assessee cannot put forward a contention that the rate of tax should be 4 per cent as items sold by it are declared goods.

We are of the view that the assessee is not entitled to claim the benefit of S.R.O. No. 1728 of 1993. The above order provides that on the sale to the persons or organisations mentioned in column (2) of Fifth Schedule of goods specified in column (3) thereof, there will be reduction in the rate of tax payable under the Kerala General Sales Tax Act, 1963 to the rates mentioned in column (4) on the seller producing a certificate in duplicate in the form in annexure I obtained from the purchaser. Fifth Schedule, item 2 is Central Government and State Government Departments. Kerala Water Authority not being a Department of Government of Kerala, the assessee cannot claim any reduction in the rate of tax for the reason that it has been selling these goods to the Kerala Water Authority.

Supreme Court had occasion to consider the difference between a Department of a Government and a Corporation in State of Punjab and Others Vs. Raja Ram and Others, as follows :

A Government department has to be an organisation which is not only completely controlled and financed by the Government but has also no identity of its own. The money earned by such a department goes to the exchequer of the Government and losses incurred by the department are losses of the Government. The Corporation, on the other hand, is an autonomous body capable of acquiring, holding and disposing of property and having the power to contract. It may also sue or be sued by its own name and the Government does not figure in any litigation to which it is a party.

It may be true that for the purpose of Article 12 of the Constitution of India, Kerala Water Authority which is incorporated under statute, can be treated as State, but not as department of the Government. Karnataka High Court had considered a similar question in Siddeshwara Industries v. Commissioner of Commercial Taxes in Karnataka [1999] 112 STC 486ker. The contention raised by the assessee therein was that it is entitled to reduced rate of tax as it had effected sales to Zilla Parishads in Karnataka and Nationalised Banks. As per the notification then in force, such benefit was applicable only in respect of sales to Department of Government of India or Government of Karnataka or Government of any other State located in Karnataka. The contention that Zilla Parishads established under the Karnataka Zilla Panchayat, Taluk Panchayat Samithies, Mandal Panchayat and Nyaya Panchayat Act, 1985 and the Nationalised Banks would come within the term "Department of Government", was rejected by the Karnataka High Court. It was observed as follows :

Consistently, the courts have held such statutory bodies having their independent corporate identity as bodies distinct from the Government departments, though, such bodies may withstand the test of being ''State'' being ''other authority'' for the purpose of Article 12 of the Constitution of India.

In view of the above, there is no merit in the contention raised by the assessee that in respect of sale by it to the Kerala Water Authority, it is entitled to the benefit of reduced rate of tax under S.R.O. No. 1728 of 1993.

In the result, we reject both the contentions raised by the assessee. The tax revision case stands dismissed.