TMI Blog2017 (1) TMI 688X X X X Extracts X X X X X X X X Extracts X X X X ..... y the Tribunal, while passing the order impugned - Various clauses of the agreement entered into by the builder with the allottee were referred to before the Tribunal. This Court finds that the Tribunal has not examined to any of the clauses of agreement, nor the nature of transaction itself has been commented upon, in order to return a finding that a works contract had come into existence. The Tribunal being the highest Court of fact was expected to have examined the nature of transaction itself, only after analyzing the clauses of agreement entered into between the assessee and prospective allottee, a finding of works contract could have been returned. It seems that Tribunal did not deal with the factual issues relating to transaction ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t as amounting to a works contract, and in respect of goods utilized for construction of flats, the assessee has been held liable to payment of tax. The department as well as the Tribunal for the purposes of coming to such conclusion have relied upon judment of the Apex Court in K. Raheja Development Corporation Vs. State of Karnataka, reported in 2005 (5) SCC 162, as well as judgment in M/S. Larsen and Toubro Limited and another Vs. State of Karnataka and another, reported in 2013 U.P.T.C. 1277. The Tribunal while affirming demand of tax from the assessee has virtually followed the aforesaid two judgments, in order to hold the revisionist liable to payment of tax. 2. Sri R.R. Agarwal, learned Senior Counsel assisted by Sri Suyash Agarwa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stered transfer deed. It is stated that such aspects have clearly been omitted from consideration by Tribunal. Learned counsel further submits that facts and circumstances relating to the transaction between the parties have not been given due consideration by the Tribunal, and there is an apparent failure on part of Tribunal to deal with issues raised and pressed before it, which renders the order unsustainable. Learned counsel submits that Tribunal is the highest authority under the Act, which can go into the issues of fact and law, and was expected to deal with all submissions urged before it, and the failure on its part to specifically dealt with the arguments urged amounts to failure to exercise jurisdiction vested in it by law. 3. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bad. 6. The facts, which have given rise to passing of the judgment by the Hon'ble Supreme Court in K. Raheja Development Corporation (supra), have been noticed in paragraph-2 of the judgment, which reads as under:- 2. Briefly stated, the facts are as follows: The Appellants carry on the business of real estate development and allied contracts. They are having their Office at Bangalore. They enter into development Agreements with owners of lands. Thereafter they get plans sanctioned. After approval of the plans they construct residential apartments and/or commercial complexes. In most cases before they construct the residential apartments and/or commercial complexes they enter into Agreements of Sale with intended purchaser ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uses of agreement, nor the nature of transaction itself has been commented upon, in order to return a finding that a works contract had come into existence. The Tribunal being the highest Court of fact was expected to have examined the nature of transaction itself, only after analyzing the clauses of agreement entered into between the assessee and prospective allottee, a finding of works contract could have been returned. It is to be noticed that there existed difference in the facts of the present case viz-a-viz K. Raheja Development Corporation (supra) and M/S. Larsen and Toubro Limited (supra). It was also observed therein that rights were also created in respect of immovable property in favour of the allottees. In the facts of the prese ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o be sustained. It is clarified that this Court has not adjudicated the issues on merits, and any observations made in this order is not to be construed as an expression of opinion on the respective claim of parties on merits. All issues of fact and law are left open to be considered by the Tribunal. 9. In view of the aforesaid discussions, the order of Tribunal dated 27.10.2016, passed in Second Appeal Nos.172 of 2016, and 216 of 2016, are not liable to be sustained, and are set aside. The Tribunal shall proceed to reconsider the matter, in light of the observations made above, after affording opportunity of hearing to the parties concerned, at the earliest possible, preferably within a period of four months from the date of presentatio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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