Point of Law: An assessment order continues to be effective unless reviewed or modified in appeal and so long as an assessment order remains without any such review or modification, no claim for refund would be maintainable.

JUDGMENT :

ANU SIVARAMAN, J.

1. W.P. (C) No. 8448/2021 challenges Ext.P5 order dated 5.3.2019, by which, the Kerala Value Added Tax Appellate Tribunal (for short ‘the KVAT Appellate Tribunal’) partly allowed the appeals filed by the State and modified the directions of the First Appellate Authority and directed the Assessing Authority to complete the assessment afresh as indicated in paragraphs 9 and 10, taking note of the decision of the Apex Court in State of Gujarat vs. Bharat Pest Control, 2018-TIOL-310-SC. There is a further prayer for a direction to respondents 4 and 5 to deposit the amount of service tax erroneously collected from the petitioner to the 1st respondent to discharge the VAT liability confirmed by Ext.P5 order. Challenge is also raised to Ext.P11 order of the 6th respondent rejecting the request for refund of the service tax paid and Ext.P14 notice issued by the 7th respondent under Section 25(1) of the Kerala Value Added Tax Act (for short ‘the KVAT Act’). The assessment years in question in the said writ petition are from 2008-’09 to 2012-’13.

2. The prayer in W.P. (C) No. 19432/2021 is to quash Ext.P13 order of the 6th respondent dated 5.7.2021, by which, the annual returns filed by the petitioner for the financial year 2015-’16 claiming exemption on receipts of service contracts have been rejected and resorted to assessment under Section 25(1) of the KVAT Act.

3. Heard Sri. Bharat Raichandani, the learned counsel appearing for the petitioner, Sri. Sreelal N. Warrier, the learned Standing Counsel appearing for the Service Tax Authorities and Sri. Mohammed Rafiq, the learned Special Government Pleader appearing for the State Revenue.

4. The learned counsel appearing for the petitioner submits that the question whether the business of pest control undertaken by the petitioner would fall within the meaning of a service contract or not is a pure question of fact which has to be decided on the basis of the specific terms of the contract entered into between the parties and that the blind reliance placed by the Appellate Tribunal on a decision of the Apex Court rendered in different fact circumstances is completely erroneous and unjustifiable. It is submitted that a transaction cannot, at the same time, be a service contract and a works contract. It is submitted that in case there is no transfer of property in the nature of goods or otherwise and where all that is intended and executed is the performance of a service per se, there can be no element of sale involved and the imposition of VAT on such a transaction would be completely erroneous. In the alternative, it is argued that the petitioner, on the basis of it’s conviction that the transaction in question is a service contract had paid service tax in respect of the entire turn over for all the periods in question and that in case it is found that the contract was a works contract, it is for the Service Tax Authorities to pay the amount found due as VAT to the VAT Authorities in Kerala since in that case, the collection of service tax from the petitioner would be obviously erroneous. It is contended that Article 265 of the Constitution of India provides that no tax can be collected without authority of law. It is submitted, relying on the decisions in Godfrey Phillips India Ltd. and Another vs. State of U.P. and Others, 2005-TIOL-10-SC-LT-CB and Imagic Creative Pvt. Ltd. vs. Commissioner of Commercial Taxes, 2008 (9) S.T.R. 337 (SC), that service tax and VAT are mutually exclusive and once a transaction is subjected to service tax, no VAT can be levied on the same element of the same transaction. It is further contended that in case it is found that the transaction in question is a works contract, then no service tax would have been payable on the transaction and that the Service Tax Authorities cannot, in those circumstances, retain the amounts wrongly paid by the petitioner as service tax, which then become unauthorised collections without authority of law. Th