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of <h1>Court clarifies bore-well driving not civil construction, tax based on work nature</h1> <h3>TP. Tony Versus State of Kerala</h3> TP. Tony Versus State of Kerala - [2010] 30 VST 44 (Ker) Issues:Whether driving of bore-well constitutes civil construction work entitling the petitioner to pay tax at a compounded rate under section 7(7) of the Kerala General Sales Tax Act, 1963.Analysis:The court deliberated on the question of whether driving a bore-well should be considered as civil construction work for tax purposes. Initially, the definition of 'civil construction work' did not include the construction of a well, but a later amendment broadened the scope to include various civil works, including well construction. A previous decision by the court clarified that this amendment was meant to be clarificatory, extending the definition retroactively. The petitioner argued that since the construction of a well is now classified as civil construction work, and the purpose of a bore-well is similar to that of a well, they should be eligible to pay tax at a compounded rate for bore-well construction.The court observed that the tax on works contract cannot be directly applied to bore-wells in the same manner as to other wells. The process of digging and removing earth for a well does not involve the supply of materials, thus not attracting tax on works contract. Similarly, driving a bore-well, which is a mechanical process, does not involve the supply of goods either. The key difference between a regular well and a bore-well lies in dimensions and depth. While construction activities involving materials and installations like protective walls or motors attract tax liability, the mere act of driving a bore-well does not inherently involve tax on works contract.In cases where a bore-well construction contract includes the supply of casing, motor, or other construction activities like pump houses, tax liability should be determined based on the nature of work done. If the materials supplied are not typical civil construction materials, then the compounded tax rate under section 7(7) may not be applicable. However, if the construction involves additional structures like rooms or motor houses, it should be treated as civil construction work subject to tax at the compounded rate.Consequently, the court set aside the Tribunal's order and remanded the matter to the assessing officer for a reassessment of tax liability based on the specific details of the contract and work done. The assessing officer was instructed to verify reimbursements made by the water authority to the petitioner and to forfeit any excess tax collected or reimbursed in accordance with the law. The petitioner was directed to provide necessary documentation for the reassessment process.
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