9911796707
Advanced Search 
TMI Blog2015 (7) TMI 230X X X X Extracts X X X X X X X X Extracts X X X X ..... lopers of apartment buildings, villas, houses, commercial complexes etc, identify and purchase land suitable for construction. After preparation of lay outs, and after making provision for necessary amenities such as roads, parks, water, electricity, sewerage, health club and other facilities, they construct houses and sell them after obtaining necessary sanctions. It is their case that for operational convenience, and to enable the buyers to raise loans, the respective plots, with a semi-finished structure, are initially sold to buyers with a pre-condition that development would be undertaken only by the petitioners in terms of the sanctioned plans for such group housing schemes. In some cases only plots are initially sold, and in some others semi- constructed structures are also sold along with the plot or the undivided share of land. Approval is obtained from the concerned authorities before commencement of construction, and prior to the sale of land. The petitioners execute a conveyance in favour of the purchaser, either in respect of the plot of land on which a residential house is to be constructed, or the plot of land with the semi-finished structure. Initially an agreement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sition under Section 4(7)(b) for the construction / completion/finishing agreement; they were, therefore, liable to be assessed under Section 4(7)(a); they had only paid 4% of 25% of the entire sale consideration; they had, thereby, under-declared VAT; and the value of the construction agreement was required to be assessed under the regular scheme of taxation i.e the non-composition scheme. The assessing authority further held that the dealers themselves had admitted that they had executed three types of documents i.e, (1) the agreement of sale, (2) the sale deed for the semi-finished apartment, and (3) the construction agreement; a fresh agreement, for completion of the pending works of the flat, was entered into either with, or after, execution of the sale deed; the construction agreement, entered into after registration of the semi- finished apartment in the name of the customer, is a fresh works contract for which the contractor is required to pay tax at the rates applicable on the value of the goods at the time of incorporation, or under the composition scheme by filing Form VAT 250 before the assessing authority; as the dealer had failed to submit Form-VAT 250 opting to pay ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rayana Reddy Learned Counsel for the petitioners and Sri K. Vivek Reddy, Learned Counsel for the respondent. Written submissions have been filed, on behalf of the petitioners, by Dr. S.R.R. Viswanath and Sri V. Bhaskar Reddy, and on behalf of the respondents by Sri K. Vivek Reddy. It is convenient to examine the rival submissions under different heads. I. PRELIMINARY ISSUES: A. CONTRARY RULINGS OF THE ADVANCE RULING AUTHORITY: It is contended, on behalf of the petitioners, that the rulings of the Advance Ruling Authority, in Maytas Hill Country Pvt. Ltd. and Sai Sree Developers (P) Ltd., are directly applicable to the present facts scenario; it is not even the case of the assessing authority that they were revoked or cancelled; as long as the said advance rulings subsist, they are bound to be followed by the department in view of Section 67(4) of the Act; the assessing authorities have mis- conducted themselves in not following these rulings, and in not even referring to them; the Advance Rulings, in M/s Madhu Collections, Hyderabad and M/s Lumbini Constructions (P) Ltd., have no application, and are not consistent with the provisions of the Act; and these rulings were passed wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be made on hypothetical situations or those which are hyper- technical in nature. It is wholly unnecessary for us to examine whether the submission made before this Court, on behalf of the Revenue, go beyond the scope of the several assessment orders under challenge in these Writ Petitions as the interpretation to be placed on Section 4(7)(d) of the Act, and the Rules made thereunder, are pure questions of law unrelated to the facts in issue, and can be raised at any stage, even for the first time in proceedings under Article 226 of the Constitution of India. In any event, the conflicting advance rulings necessitate examination of all questions of law touching upon the scope and application of Section 4(7)(d) and the Rules made thereunder. II. IS THE POST-SALE COMPLETION/FINISHING WORKS CONTRACT ELIGIBLE FOR COMPOSITION UNDER SECTION 4(7)(d) OF THE AP VAT ACT? It is contended, on behalf of the petitioners, that Section 4(7)(d) of the Act does not even remotely suggest that on the sale of a semi- finished flat, with a specific condition that the construction would be completed by the very same contractor under a completion agreement, the composition facility ceases; the "sale dee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion. Once the sale deed is executed, the first works contract comes to an end. (3) post-sale finishing agreement with the buyer. This agreement may be either express or implied. Under this agreement, the builder-contractor executes the finishing work for the buyer/owner, and not the prospective buyer. This is the second works contract, and the consideration for this work is, ordinarily, stipulated in the finishing agreement; the post-sale construction, by the assessee for a buyer, cannot be subjected to composition under Section 4(7)(d) of the Act; composition, under Section 4(7)(d), is applicable only if the works contract contemplates construction followed by sale of the constructed work; the assessee has to strictly satisfy the requirements of Section 4(7)(d) for availing composition; and the petitioners are entitled to composition if, and only if, they fall within the four corners of the Act. Before examining these and the other submissions, it is useful to note the provisions of the Act, and the Rules made thereunder, mainly in relation to works contracts. Section 2(16) of the Act defines goods to mean all kinds of movable property other than newspapers, actionable claims, st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ereby tax is levied on the goods involved in the execution of works contracts. Tax, under Section 4(7)(a) of the Act, is payable by a dealer if he chooses not to exercise the option of composition under Section 4(7)(b) and (d) of the Act. (M/s. Mark Infrastructure Pvt. Ltd. v. The Commercial Tax Officer (2015) 77 VST 297). Under clause (a) of Section 4(7) the liability to pay tax, by a dealer executing works contracts, is on the value of the goods at the time of incorporation of such goods in the works executed by him. Rule 17(1)a) stipulates that, in the case of contracts not covered by sub-rules (2) and (4), the VAT dealer is required to pay tax on the value of the goods, at the time the goods are incorporated in the work, at the rates applicable to the goods. Rule 17(1)(b) provides that such a VAT dealer shall be eligible to claim input-tax credit on 75% of the tax paid on the goods purchased, other than those specified in Rule 20(2), and he is eligible to issue a tax invoice. Rule 17(1)(d) provides that the value of the goods, declared by the contractor, to have been used in the execution of a works contract, shall not be less than the purchase value, and shall include seignior ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ute goods). Even in cases where the dealer does not maintain books of accounts his liability to pay tax, under Section 4(7)(a) and its proviso, is on the total consideration received or receivable less the standard deduction prescribed under Rule 17(1)(g). The standard deduction is prescribed to avoid subjecting to tax the labour and services component of the works executed by a contractor, as tax can only be levied on the deemed sale of goods incorporated in the works. As the net consideration, received or receivable, for execution of the works contract, (total consideration minus the standard deduction), is alone required to be taken into consideration, in determining the tax liability of the dealer, it is evident that tax, under Section 4(7)(a) and its proviso, is not levied on the consideration received for the land component, or on the labour and service component, of the works contract. Two distinct schemes of compositions are provided under clauses (b) and (d) of Section 4(7). A scheme of composition, essentially, seeks to provide an option under which, in lieu of the tax payable under the provisions of the Act, a registered dealer can pay, what is described as the composit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rescribed therein. The dealer is entitled to seek composition of his tax liability only if his case falls within the four corners of the composition scheme. As composition is optional, the dealer is not bound to compose his tax liability. If he finds the terms of the composition not favourable the dealer can, instead, discharge his tax liability by the normal mode prescribed in Section 4(7)(a) of the Act. Under Section 4(7)(b) every dealer executing works contract may, in lieu of the tax payable by him under Section 4(7)(a), opt to pay tax by way of composition at the rate of 4%/5% of the total amount received or receivable by him towards execution of the works contract subject to such conditions as may be prescribed. Unlike Section 4(7)(a), which provides for levy of tax only on the value of goods at the time of its incorporation in the works executed by the dealer, Section 4(7)(b) requires the dealer, who has exercised the option to pay tax by way of composition, to pay tax at 4%/5% of the total amount received or receivable by him towards execution of the works contract. Rule 17(2) of the VAT Rules relates to treatment of works contracts under composition. Rule 17(2)(a) stipula ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... v) in cases where the market value fixed for land and buildings, for the purpose of stamp duty, is higher than the consideration received or receivable towards the composite value of both land and building, it is the market value fixed for the purpose of stamp duty which is required to be taken as the composite value of land and building for determining the tax liability; (vi) exercise of option, to claim the benefit of composition, is subject to such conditions as may be prescribed by way of Rules, which are those stipulated under Rule 17(4); (vii) the dealer, executing a contract for constructing and selling the specified buildings, is required to register himself as a dealer (Rule 17(4)(a)); (ix) the dealer is then required to notify the prescribed authority in Form VAT 250, before commencement of execution of the work, of his intention to avail composition for all the works, relating to the construction and sale of the specified buildings, undertaken by him. (Rule 17(4)(b)). Form VAT 250 is the application to be submitted by the dealer opting for payment of tax by way of composition. The said Form requires the name and address of the dealer to be furnished; for the dealer to st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w. It is then for the legislature to do the needful in the matter. (Mathuram Agarwal v. State of M.P. AIR 2000 SC 109). Should a construction which renders Section 4(7)(d) unworkable, and its application uncertain, be accepted? Startling and unforeseen consequences would ensue if this Court were to accept the submissions urged on behalf of the revenue that (1) there is a change in the identity of the purchaser of the apartment on a sale deed being executed in his favour; (2) the construction made by the developer, after an agreement of sale is entered into but prior to execution of the sale deed, is the construction made for a prospective buyer; (3) any construction made by the developer, after execution of the sale deed, is a construction undertaken by him for the owner of the building; and, (4) while construction undertaken by the developer for a prospective buyer (with whom an agreement for construction and sale of the apartment is entered into) falls within the ambit of Section 4(7)(d), the construction made after a sale deed is executed does not. A residential apartment/commercial complex, or a group housing scheme, consists of several units (ie flats or individual houses/vil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rcise the option for composition as his liability to pay tax under Section 4(7)(d) would be contingent on the uncertain future event of execution and registration of sale deeds for different flats at different stages of construction. As noted hereinabove Section 4(7) relates to levy of tax on works contracts. While the normal mode of levy of tax, on dealers executing words contracts, is under Section 4(7)(a), clauses (b) and (d) provide for two different schemes of composition. Clauses (a), (b) and (d) of Section 4(7) are in the alternative, and a dealer cannot be subjected to tax on the execution of a works contract partly under one and partly under another clause of Section 4(7). Classification of dealers executing works contracts, under clauses (b) and (d) of Section 4(7), is based on the nature of business the dealer is engaged in, and does not change merely because a conveyance deed is executed and registered for the sale of a semi-finished structure. As long as it is the same contractor who executes the works for the same purchaser, from commencement till completion, the option available to him, to pay tax under clauses (b) and (d) of Section 4(7), would depend on the class ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... truction cannot be the subject matter of composition, under Section 4(7)(d) of the Act. There are two works contracts which are being executed by the parties. In the first works contract, the construction work is undertaken by the assessee for the prospective buyer. This work contract is executed prior to registration of the sale deed. In the second works contract, the assessee executes the finishing work for the buyer. Unlike the first works contract, the construction work in the second works contract is undertaken not for the prospective buyer, but for the buyer himself. Further, in the first works contract, the assessee is executing the works contract in his capacity as the owner / developer. In the second works contract, the asseesee executes the works merely as a contractor. Even though the parties may be the same, the capacity under which they undertake the contract changes completely after the execution of the Sale Deed; in K. Raheja Development Corporation1 the Supreme Court held that any construction activity, for the prospective purchaser prior to the sale, amounts to a works contract; and in Iravanshi Builders & Developers v. CCT, Uttarakhand (2014) 25 STJ 474 (Uttra) th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... activity of construction has all the characteristics or elements of a works contract. The ultimate transaction between the parties may be the sale of a flat, but it cannot be said that the characteristics of a works contract are not involved in that transaction. (Larsen & Toubro Ltd.). The agreement between the developer, and the owner of land, is a development agreement. A typical development agreement is followed by a tripartite agreement between the owner of the land, the developer and the flat purchaser. Effectively, and de facto, it is the developer who constructs the building, for the flat purchaser, for monetary consideration. The label of payment is not decisive but the factum of the payment is. The construction is undertaken on payment of the price agreed upon between the developer and the flat purchaser. The construction work is undertaken by the developer not for himself or the owner but is carried for, and on behalf of, the purchaser. Such a transaction is a composite contract comprising of both a works contract and transfer of immovable property. Value added tax is levied on the value of the material involved in the execution of the works contract. (Larsen & Toubro Lt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the tax paid on the sale/deemed sale of goods by a VAT dealer, and not on the sale of immoveable property. A dealer, who opts for composition under Section 4(7)(d), is liable to pay tax on the composite value of the apartment/building which includes the consideration received or receivable for transfer of land, the goods incorporated in the works, and labour and services. Section 4(7)(d) applies only to dealers engaged in the construction and selling of residential apartments, houses, buildings or commercial complexes. The word "and" has generally a cumulative sense, requiring the fulfilment of all the conditions that it joins together, and it is the antithesis of "or". (Ishwar Singh Bindra v. State of UP AIR 1968 SC 1450; Stroud's Judicial Dictionary, 3rd Ed. Page 135). Maxwell on Interpretation of Statutes, 11th Ed.). By the use of conjunctive word and, between construction and selling, Section 4(7)(d) restricts the benefit of composition only to those dealers who are engaged both in the construction and in the sale of residential apartments, houses, buildings, commercial complexes etc, and not merely to those engaged only in construction, and not in the sale, of such buildin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stage of sale of the semi-finished structure of one of the units (ie one of the flats in a residential complex or one of the shops in a commercial complex). The entire transaction must be viewed from a commercial and realistic perspective, and must be examined holistically. (Vodafone International Holdings BV v. Union of India (2012) 6 SCC 613). The purchaser of the residential apartment, house/building etc, is the same person with whom the developer enters into the initial agreement, executes a registered deed for the sale of a semi-finished structure, and thereafter enters into a finishing agreement for completion of the semi-finished structure into a residential apartment, house, building etc. The artificial severance of the identity of the person who purchases the residential apartment/flat from a developer, firstly as a prospective buyer before execution of a sale deed, and thereafter as the owner of semi-finished structure, does not find support from a plain and literal construction of Section 4(7)(d). Where the literal reading of a fiscal statute produces an intelligible result, clearly there is no ground for reading in words or changing words according to what may be the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is contended, on behalf of the petitioners, that the option exercised by the petitioners, before commencement of the work, is on the basis of the initial parent agreement which includes the cost of the land, the semi-finished flat/building, and the value of the work covered under the completion/finishing agreement; the petitioners cannot be treated as independent works contractors, in respect of the finishing works, as these works executed by them are also covered under the initial agreement, and are not new works; the petitioners were under a contractual obligation to complete construction of the flats/houses, in terms of the initial agreement, and were required to hand over possession only after obtaining occupancy certificate from the respective Municipality/ Municipal Corporation in terms of the Building Regulations; they hand over possession only after obtaining an occupancy certificate from the respective municipality/municipal corporation in terms of the Building Regulations; the petitioners, who have opted to pay tax under Section 4 (7) (d) on the entire value mentioned in the initial agreement, which includes the cost of land, construction and other amenities, are liable t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... months, on the ground that the erection of the crest gates should be completed urgently so as to facilitate impounding of water at the Alamatti Dam in the same year. Additional finance was calculated for the year 2000 -01 for deploying additional equipment, the manpower required for compressing the erection process, and for hiring two high powered cranes and additional erection equipment. The assessee had opted for composition, and for payment of tax on the consideration received for execution of the works contract at the Alamatti Dam. They claimed non -liability to tax, on the additional financial compensation received for compression of the erection period, contending that it was not part of the consideration received towards the works contract. The assessing authority accepted their claim. The revisional authority, however, revised the assessment order on the ground that the payment received by the assessee, for compression of the erection period, was also payment received for execution of the works contract for erection of radial crest gates; and, therefore, the said payment could not have been left out of the tax net. The revisional authority ordered that the left out conside ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e consideration reflected in the initial agreement which is later split up between the consideration reflected in the sale deed and the consideration receivable as specified in the finishing agreement. The legislature must be presumed to be aware of similar Acts passed by the same legislature and the Rules made thereunder. Acts of the legislature, dealing with the same or similar subject-matter, should be construed not only as expressing the intention of the legislature on the dates these Acts were passed, but the later Acts should also be regarded as legislative interpretations of the prior ones. (Hariprasad Shivshanker Shukla v. A.D. Divelkar). In construing a statute the Court may, with propriety, refer to the history of the times when it was passed. (Hariprasad Shivshanker Shukla16; Great Northern Railway Co. v. United States of America). It is a settled canon of construction that the meaning of words and terms used in a statute can be properly explained only by reference to the circumstances existing at the time when the statute was enacted. (Auckland Jute Co. v. Tulsi Chandra; Maxwell on Interpretation of Statues, p.23 (9th Edn.). The A.P. Revised Common Building Rules were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mpletion, and not merely on the consideration received for the construction of a semi-finished structure. Accepting the interpretation placed, by Sri K. Vivek Reddy, Learned Counsel for the respondents, on Section 4(7)(d) would exclude the construction made by the developer prior to an agreement of sale being entered into with a prospective buyer, and the construction made after execution of a sale deed for a semi-finished structure, from its ambit. Such a construction would render Section 4(7)(d) and Rule 17(4) unworkable. A construction which would make the provisions more effective and workable must be adopted, if possible without doing too much violence to the language used. An intention to produce an unreasonable result is not to be imputed to a statute. (Artemiou v. Procopiou ; Francis Bennion Statutory Interpretation). The pre-requisite, for being extended the benefit of composition under Section 4(7)(d), is for an application to be submitted in Form VAT 250 before commencement of construction. Section 4(7)(d) makes the benefit of composition thereunder subject to such conditions as may be prescribed. Section 2(24) of the Act defines prescribed to mean prescribed by Rules m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he revenue, would alone fall within the ambit of Section 4(7)(d). The benefit which accrues to the State in prescribing a scheme for composition, i.e., reduction of the burden of tax administration, would also cease, as a result. Such a convoluted construction of Section 4(7)(d) does not merit acceptance. (iii) DOES THE WORKS CONTRACT, EXECUTED PRIOR TO SALE, ALONE FALL WITHIN THE AMBIT OF SECTION 4(7)(d)? It is contended, on behalf of the petitioners, that registering a semi finished construction, prior to handing over the completed flat/house to the prospective buyers in terms of the initial agreement, is not fatal; the assessing authorities have erred in holding that the liability of the dealers to pay VAT is on the transfer of property by way of a registered sale deed, ignoring the fact that the liability of the dealers is not dependent on the sale deed; dealers, engaged in construction and sale of residential apartments, houses, buildings or commercial complexes, can avail themselves of the facility of composition as long as they are willing to pay tax on the composite value of land and building, or the market value fixed therefor, whichever is higher; undisputedly the agree ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... structure relating to one of the units (be it a flat in a residential apartment building or a shop in a commercial complex). The requirement is for the dealer to be engaged both in construction and sale of the specified buildings. The mere fact that the word selling is used after the word construction does not mean that Section 4(7)(d) is applicable only to those dealers who are engaged in construction prior to the sale of the building, and not thereafter. The person who enters into the initial agreement with the developer for the purchase of the apartment/building proposed to be constructed (otherwise called the prospective buyer) is the same person in whose favour a registered sale deed is executed for conveyance of a semi-finished structure, and is also the very same person with whom the completion/finishing agreement is entered into by the developer thereafter. As the option for composition under Section 4(7)(d) can be exercised only by those dealers who construct and sell residential apartments, houses, commercial complexes, buildings, and not semi-finished structures, the option can neither be curtailed only till the stage of execution and registration of a sale deed, nor c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of taxing the material component of the works, executed subsequent to registration of a sale deed for a semi-constructed flat, separately does not arise; the Petitioners-dealers, having exercised their option to pay tax by way of composition under Section 4(7)(d), have been discharging their tax liability on the entire consideration received by them, which includes the cost of land, construction and other amenities; the contention of the Revenue, that as the petitioners had executed sale deeds in favour of the prospective buyers of semi-finished flats / villas, the benefit of composition under Section 4(7)(d) would be available only for the value shown in the sale deed, and the balance amount received or receivable thereafter, for completion of the semi-finished construction, is taxable either under Section 4(7)(a) or under Section 4(7)(b) is not tenable; the composition scheme under Section 4(7)(d) is applicable for the entire consideration based on the initial or parent agreement; the option of composition was exercised by the petitioners before commencement of the work, and the initial or parent agreement included the entire cost of land, the semi finished flat / villa toget ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t (second works contract) has a consideration clause; any amount received by the contractor-dealer for the finishing work is traceable to the finishing agreement, and not to the agreement to sell; this is also evident from the fact that, if there is any defect in the finishing work, the buyer can sue only under the finishing agreement; although the agreement to sell stipulates a consolidated consideration for the entire work, the consideration for the post-sale finishing work can only be attributed to the finishing agreement, and not to the agreement to sell, because the liability to execute the finishing work, and the consideration for the said work, is stipulated in the finishing agreement; any amount received by the assessee-contractor for the finishing agreement, prior to execution of the said agreement, is only a case of past consideration; the finishing agreement does not also make any reference to the agreement to sell; and the petitioners have to strictly satisfy the terms of composition as set out in Section 4(7)(d) and Rule 17(4). The agreements entered into between the petitioner in W.P. No.30173 of 2014, and Sri P. Narasareddy (who purchased a flat from them), can be t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d submit that the agreement for completion of the semi-finished flat (subject matter of W.P.No.37528 of 2014) which refers to the registered sale deed, whereby the purchaser or the vendee had purchased the semi-finished flat, only refers to completion of certain works such as electrical works, sanitary works and painting; and the consideration shown therein is only Rs. 50,000/-. Even the agreement of sale, (which is the subject matter of W.P. No.37528 of 2015), i.e., the initial agreement dated 24.10.2013 entered into between the owner of the land and the petitioner (developer) on the one hand, and the vendee on the other, records the total sale consideration payable, for the flat proposed to be sold, as Rs. 23,06,000/-. The registered sale deed dated 27.01.2014, executed thereafter for the sale of a semi-finished flat, records the sale consideration as Rs. 22,56,000/- and the agreement for completion of the semi- finished flat, also dated 27.01.2014, records the consideration payable as Rs. 50,000/-. It is evident, therefore, that the consideration referred to in the registered sale deed dated 27.01.2014 for Rs. 22,56,000/-, plus the consideration referred to in the agreement for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... month in which the sale of the property is concluded and registered; and to pay the tax due either directly to the assessing authority or to the Sub-Registrar. The month, in which the sale of the property is concluded and registered, is the month in which the entire tax due is required to be paid which, as noted hereinabove, is at 4%/5% of 25% of the consideration received or receivable. As tax is required to be paid even on the consideration not yet received, it is evident that the liability to pay tax, on composition under Section 4(7)(d), is also on the consideration receivable on the construction to be continued and completed, in terms of the initial agreement, after conclusion and registration of the sale of the semi-finished structure. The tax liability of a dealer, under Section 4(7)(d), is on the consideration stipulated in the initial agreement for the composite value of the land and the building, and this liability is to be discharged in the month in which the sale deed is executed and registered, even if it be for a semi-finished structure. The dealer is liable to pay tax either before the sub-registrar when the sale deed is executed or along with the monthly return, be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he sale of a semi-finished structure is concluded and registered, and tax should be paid, at that stage itself, for the total consideration received or receivable for the land and buildings which would include the consideration which the developer has not yet received for the post-sale construction to be undertaken by him. The consideration still due, as referred to in the finishing/completion agreement, is the consideration stipulated in the initial agreement minus the consideration already received and reflected in the registered sale deed. It matters little, therefore, whether the right of the purchaser to sue for any defect in construction, post-execution of the sale deed, is referable to the completion agreement or to the initial agreement. Any construction made beyond the scope of the initial agreement would, however, be an independent works contract not falling within the ambit of Section 4(7)(d) of the Act. Learned counsel, appearing on behalf of the petitioners, would fairly state that the works executed beyond or independent of the initial agreement, entered into by the developer with the prospective buyer, would not fall within the ambit of Section 4(7)(d) of the Act; a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o have regard to the state of things existing at the time the statute was passed. (D.N. Banerji v. P.R. Mukherjee AIR 1953 SC 58 : 1953 SCR 302; Keates v. Lewis Merthyr Consolidated Collieries (1911) A.C. 641). In ascertaining the meaning of words, the context is also relevant to know what exactly was meant to be conveyed by the terminology employed. (D.N. Banerji). Section 5-G of the APGST Act related to composition of tax and, under sub-section (1) thereof, subject to such conditions and, in such circumstances as may be prescribed, if a dealer who executes any works contract so opts, the assessing authority of the area may accept, in lieu of the amount of tax payable by him under the Act during the year, by way of composition, an amount at the rate of 4% of the total amount paid or payable to the dealer towards execution of the works contracts. Under the second proviso thereto if a dealer, who executes a works contract of construction of apartments or buildings so opts, the assessing authority of the area may accept, by way of composition, an amount calculated at the rate of Rs. 4/- (Rupees four only) per square foot of the constructed area. While the benefit of composition, unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd buildings, has been continued under the AP VAT Act also. While different rates of tax were prescribed under the APGST Act for general works contracts, and works contracts relating to apartments and buildings, this distinction is made under the A.P. VAT Act also. The legislative intent of both the enactments is to extend the benefit of a distinct scheme of composition to a particular class of contractors executing works contracts of residential apartments and buildings, and not to make the benefit contingent on the stage of construction when a registered sale deed is executed for the conveyance of a semi-finished structure. IV. CONCLUSION: If dealers engaged in the construction and sale of residential apartments, houses, buildings or commercial complexes exercise the option, and comply with the conditions stipulated in Section 4(7)(d) and Rule 17(4), they cannot be denied the benefit of composition thereunder for the construction made by them, for the very same person, after execution of a registered deed for the sale of a semi- finished structure. Denial of the benefits of the composition scheme under Section 4(7)(d) to such dealers, for the post-sale construction made in term ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
