TMI Blog2010 (11) TMI 888X X X X Extracts X X X X X X X X Extracts X X X X ..... cuted by registered dealers or whether the construction was taken up by the appellant himself and therefore element of sale is involved by virtue of deemed sale. Hence, the order of remand made by the revisional authority is affirmed. With these observations we dispose of the present appeal remanding the matter to the assessing authority. - S.T.A. No. 19 of 2010 - - - Dated:- 9-11-2010 - MANJULA CHELLUR AND ARAVIND KUMAR, JJ. For the Appellant Kamath and Kamath For the Respondent : T.K. Vedamurthy, Government Advocate, The judgment of the court was delivered by MRS. MANJULA CHELLUR J. The following questions of law are raised in the appeal memo: (i) Whether, in the facts and circumstances of the case, when the appeals before the Karnataka Appellate Tribunal are pending for decision during which time there is already a bar for exercising the power of revision as per section 64(3) (b) of the Karnataka Value Added Tax Act, 2003, will it not amount to a revision proceeding without jurisdiction and also against the settled principles of law? (ii) Whether, in the facts and circumstances of the case, where 73.55 per cent of the built up area in the ST park ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... project, 26.45 per cent of the built up area is to be transferred to the land owners in lieu of which they were to transfer 73.55 per cent of their undivided interest in the land to the appellant. The built up area of 73.55 per cent put up by the appellant remained with the developer-appellant and the same was not transferred till today. It is further the case of the appellant that he has not taken up any construction work and most of the construction work was handed over to sub-contractors who were all registered dealers and they have discharged their tax liability so far as works contracts done by them for the appellant. 3. The inspecting authority who inspected the appellant's premises on November 28, 2005 also had the benefit of verifying certain records of the transaction but however, it came to the conclusion that the transaction attracts a tax liability under entry 23 of the Sixth Schedule to the KVAT Act, 2003 and accordingly under section 79 a notice dated August 8, 2007 also came to be issued. This way duly replied by the assessee contending that neither they have sold any property nor received any advance towards future sale of the property, therefore, the agreeme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... recorded any finding of such alternative pleadings and therefore he sought for consideration of such alternative pleading made by the appellant. The entire grounds of appeal would only refer to alternative pleas raised by the appellant and it does not reveal the details of the alternative plea. However, learned counsel for the appellant Mr. Kamath brings to our notice that it was on the issue of turnover made by the assessing authority based on the market value taken by the assessing authority alternative pleas were raised before the first appellate authority which were not at all considered by the first appellate authority. However, he submits that he would be withdrawing the said appeal before the Tribunal. 7. Subsequently, the revisional authority under suo motu revisional powers issued a show-cause notice to the present appellant proposing reversing the opinion of the first appellate authority and asking an explanation from the appellant-assessee why that portion of the built up area handed over to the owners cannot be termed as a deemed sale. He also refers to the proportionate cost of built up area by taking into account the total cost of the construction put up by the app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e other valuable consideration or exchange or barter, then it was not a sale. Based upon this principle the first appellate authority held that levy of tax can only be paid on the actual amount of sale price received or receivable by the solitary tax under the Act and to constitute a transaction of sale simpliciter of goods for the purpose of the Act, the transaction should have all the ingredients of sale as specified under section 4 of the Sale of Goods Act, 1930, which includes a price in money paid or promised mutually agreed upon by the buyer and seller. According to the first appellate authority the transaction involves the undertaking by the appellant-builder or developer for exchange of 26.45 per cent built up area in the property for 73.55 per cent undivided interest in the land does not amount to sale. Therefore, he set aside the levy of tax on the assumed value as it is illegal. The revisional authority has not at all gone into this aspect of the matter and it proceeded to decide the case of placing reliance on Dhampur Sugar Mills Ltd. v. Commissioner of Trade Tax, U.P. [2006] 147 STC 57 (SC). 9. Now ultimately the revisional authority has directed the assessing autho ..... X X X X Extracts X X X X X X X X Extracts X X X X
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