MANJULA CHELLUR, J.

1. The above two Sales Tax Revision petitions pertain to penalty proceedings initiated by the Officer of Intelligence wing of the Department treating the construction of the "floating restaurant" as a 'regular sale' and not a 'work contract'. So far as W.A. No. 1079 of 2013, this was filed by the assessee complaining non refund of penalty amount subsequent to the disposal of the appeal before first appellate authority and also Tribunal. As the controversial issue involved in all the three matters being one and the same, all the three matters are disposed of together on merits.

2. The brief facts that lead to the filing of the present revisions are as under:

The respondent, a private limited company is known as "M/s. Floatels India Private Limited". It is not in dispute that it is the assessee on the file of Commercial Tax Officer, First Circle, Thiruvananthapuram. The Department of Tourism, Government of Kerala entrusted the construction of floating restaurant/jetty at "veli lake" in Thiruvananthapuram to the appellant. As a matter of fact, the impugned order of the Tribunal is the second round of litigation. In the first round, the Intelligence Officer was directed to refer to the terms of contract and then decide the controversial issue whether the transaction in question was an outright sale or a works contract. As a matter of fact, the respondent assessee sought permission for payment of tax at compounded rate as contemplated under Section 7(7) of the KGST Act. The amount of tax compounded is also paid by the assessee. Subsequently, the Intelligence Officer, Commercial Tax, Thiruvananthapuram based on certain details, opined that there was suppression of turn over resulting in tax evasion, therefore proceeded to initiate penalty proceedings for the assessment years 2003-04 and 2004-05 opining that the transaction in question was a sale and not a work contract.

3. While considering the matter by the Intelligence Officer, he again opined that the transaction in question was only an outright sale, therefore the assessee is liable to pay tax under Section 5(1). Accordingly for evasion of payment of tax, penalty was imposed.

4. It is not in dispute that Department of Tourism, Government of Kerala, entrusted construction of floating restaurant to the assessee. It took almost three years for completion of the same. The first appellate authority in the second round also opined that construction of floating restaurant is only a contract work (civil work) and tax has to be compounded as per Section 7(7) of the Act. Several other issues also came to be discussed like whether there were sufficient grounds for invoking Section 45A of the Act. However, we are not concerned with other controversies that came to be disposed of as the revenue in these two revisions is mainly challenging the opinion of the authorities below opining that the work in question is a work contract on the ground that floating restaurant is nothing but a vessel like boat/ship, therefore it is a movable property and till the property is handed over to the beneficiary, it is the responsibility of the construction company/assessee before this Court to take care of the supervision. Therefore, it is nothing but an outright sale. In other words, according to the learned Government Pleader, the floating restaurant though tied to a coconut tree but concrete poles are built which are concealed under the water, hence virtually it is like a vessel which could float in water. Therefore, reliance is placed on Hindustan Shipyard Ltd. v. State of Andra Pradesh [(2000) 6 SCC 579]. Alternatively he also contends that even if it is treated as a civil contract it does not amount to contract of nature described under Section 7(7) of the KGST Act. Therefore, once it goes out of purview of a civil work attracting explanation, automatically the tax liability has to be assessed under Section 5 of the Act hence penalty proceedings and imposition of penalty for eva