TMI Blog2014 (1) TMI 1613X X X X Extracts X X X X X X X X Extracts X X X X ..... sentence of the second paragraph of the notice that the petitioner has constructed flats and has sold them which amount to deemed sale, on which he has not accepted the liability of payment of tax and has given a show cause notice to the petitioner to appear before him to give a reply. The assessing authority has not yet exercised jurisdiction to make a provisional assessment under Section 25 (1) of the Act. He has given the notice inviting objection on assumption of facts on which he may exercise his authority. If the petitioner satisfies the assessing authority that he has not sold any flats during the relevant period, the assessing authority may not make any assessment. His satisfaction will depend on the reply to be given by the pet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iabad. 4. It is submitted by learned counsel appearing for the petitioner, that the facts necessary for assuming jurisdiction under Section 25 (1) are not existing and thus the notice is wholly without jurisdiction. The petitioner is a regular assessee. There was a dispute with regard to the payment of commercial tax on the sale of goods in the transfer of properties and apartments. The dispute was referred to a larger bench. In M/s Larsen Toubro Limited another vs. State of Karnataka and another, Civil Appeal No.8572 of 2013 decided on 26.2.2013 the dispute was resolved by a Larger Bench of Hon'ble Supreme Court. It was held that transfer of goods in the sale of properties and flats would attract the levy of sales tax. The Supreme Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , constitute material necessary to form an opinion that there is evasion of tax or that the return is not worthy of credence under Section 25 (1) (iii). No such fact exists in the present case to make provisional assessment. In Arun Kumar and others vs. Union of India and others(supra) it was held in paras 73, 74, and 75 as follows:- "73. A "jurisdictional fact" is a fact which must exist before a Court, Tribunal or an Authority assumes jurisdiction over a particular matter. A jurisdictional fact is one on existence or non-existence of which depends jurisdiction of a court, a tribunal or an authority. It is the fact upon which an administrative agency's power to act depends. If the jurisdictional fact does not exist, the court, authority ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he notice. He has however stated in the last sentence of the second paragraph of the notice that the petitioner has constructed flats and has sold them which amount to deemed sale, on which he has not accepted the liability of payment of tax and has given a show cause notice to the petitioner to appear before him to give a reply. 9. The existence of facts does not necessarily mean the existence of positive material in proof of such fact. The assessing officer has given the notice to the petitioner to show cause as to why the provisional assessment be not made on the sale of flats, which is deemed sale, on which he has not accepted the liability of tax. The question, whether the petitioner has sold the flats in that period, is within the k ..... X X X X Extracts X X X X X X X X Extracts X X X X
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