TMI Blog2016 (9) TMI 971X X X X Extracts X X X X X X X X Extracts X X X X ..... itioner does not become works contractor, unless there are materials to indicate that the petitioner had already entered into a contract with potential purchasers. The Assessing Officer is bound to consider a matter when the same is brought before him, especially when a rectification application was filed. Perusal of Ext.P6 order would show that the assessing officer had merely rejected the same by forming an opinion that all the points raised had been considered. When questions are specifically raised by the petitioner, the same cannot be ignored by the officer while considering rectification application - the matter requires a re-consideration - petition disposed off - decided in favor of petitioner. - W.P.(C) No. 30021 of 2015 - - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts, for which the petitioner had not entered into any contract with purchasers. Therefore, the contention was that as far as the 306 units were concerned, though the petitioner had purchased materials for construction purposes, there is no works contract. However, Ext.P3 assessment order came to be passed. In Ext.P3, the officer asserted the position that the assessment has been made with reference to the total taxable turnover on the basis of the value of goods purchased in terms of proviso to Rule 10 (2) (a). However, nothing has been mentioned with reference to the number of units which remains unsold or for which no agreement was executed by the petitioner with the purchasers. Petitioner, therefore, filed an application under Section 66 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... referred to the judgment of the Apex Court in M/s. Deva Metal Powders Pvt. Ltd v. Commissioner, Trade Tax, U.P. [2008 (16) KTR 482 (SC)], wherein the Supreme Court had considered as to what amounts to a mistake or error apparent on the face of the record and it is held at paragraph 11 as under: Mistake is an ordinary word but in taxation laws, it has a special significance. It is not an arithmetical error which, after a judicious probe into the record from which it is supposed to emanate is discerned. The word mistake is inherently indefinite in scope, as to what may be a mistake for one may not be one for another. It is mostly subjective and the dividing line in border areas is thin and indiscernible. It is something which a du ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e assessing officer is bound to consider the said issue also before arriving at a final finding. If there is non-consideration of relevant materials which are pleaded, it definitely amounts to an error apparent on the face of the record, which requires adjudication. 7. Reference to the judgment in Larsen and Toubro Limited (supra) would clearly indicate that there is justification on the part of the petitioner in contending that as far as the 306 apartment of units are concerned, the petitioner does not become works contractor, unless there are materials to indicate that the petitioner had already entered into a contract with potential purchasers. Paragraphs 94, 115 and 117 of the said judgment are relevant, which reads as under: 9 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he goods used in the construction cannot be deemed to have been sold by the builder since at that time there is no purchaser. That the building is intended for sale ultimately after construction does not make any difference. 8. Therefore, I am of the view that when the Apex Court had settled the law in this regard and when the same is brought to the notice of the assessing officer, the assessing officer was bound to consider the same especially when a rectification application was filed. Perusal of Ext.P6 order would show that the assessing officer had merely rejected the same by forming an opinion that all the points raised had been considered. In fact, when questions are specifically raised by the petitioner in this regard as stated a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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