TMI Blog2023 (4) TMI 1248X X X X Extracts X X X X X X X X Extracts X X X X ..... ) of the Act? - HELD THAT:- The assessee was raising the constructions of residential accommodation. Though it may have started that construction activity on its own account, at the same time, it invited offers from the public at large and accepted such offers from particular individuals, against conditions agreed in writing - on a mutual set of promises extended by the allottees and the assessee, the terms of the Allotment Letter and the agreement giving rise to a works contract arose. Thus, amongst others, it included a payment plan, adherence to which a sine qua non to the continued allotment in favour of that individual allottee. The fact that the assessee had a right to cancel the allotment and the further fact that the title in the constructions being raised and the interest in land would be transferred on a future date (upon execution of proper lease deed and sale deed), would not deflect the existence of works contract that had arisen, as a direct consequence of the Allotment Letter. In L T case [ 2013 (9) TMI 853 - SUPREME COURT] , the matter came to be referred to the three judge bench of the Supreme Court. Again, in that case, the L T was a developer seeking to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of deemed profit became necessary to be made - to determine the turnover of works contract . In that, the Tribunal cannot be faulted for applying the 10% rule as a rough and ready method to estimate, considering compoundable cases, the turnover (to be subjected to tax). Insofar as the Tribunal seems to have applied the time tested measure to make estimate, there are no good ground to offer any interference with the finding of the Tribunal, in exercise of revision jurisdiction of the Court. Rule 9 enables the assessee to seek all appropriate allowable deductions. Thus, on this issue as well, the matter does not call for any interference. The questions are answered in favour of revenue and against the assessee - revision dismissed. - Hon'ble Saumitra Dayal Singh, J. For the Revisionist : Suyash Agarwal, Sri Rakesh Ranjan Agarwal For the Opposite Party : C.S.C. ORDER Hon'ble Saumitra Dayal Singh, J. 1. Heard Shri Rakesh Ranjan Agarwal, Senior Advocate, assisted by Shri Suyash Agarwal and Shri Nitin Kesharwani, learned counsel for assessee and Shri A.C. Tripathi, learned standing counsel for the revenue. 2. Present revision has been file ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... umstances of the case, the Tribunal has erred in not distinguishing the ratio of the decisions of the Supreme Court in the case of K. Raheja and Larsen Toubro to the facts of the present case inasmuch as there was neither tripartite agreement nor any prior sale deed nor had the assessee otherwise executed any works contract on behalf of the eventual purchasers with respect to construction raised by the assessee on its own land? (ii) Whether in the alternative the Tribunal was right in sustaining the addition of 10% in purchase of value of goods for calculating the deemed sale, ignoring the value of goods at the time of incorporation of goods consumed in the construction even though the property in goods passes later on? 7. No other question has been pressed or stated to be arising in this batch of cases. Undisputedly, the assessee claims to be the lessee of land ad measuring 20900 sq.mtrs, at district Gautam Budh Nagar. It further claims to have decided to develop on that land, a residential housing scheme - J.M. Orchid , comprising of two and three bedroom flats, numbering about 684, in all. Without entering into any further agreement with any developer or any third p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... DA, the assessee's appeal was allowed. The original assessment order dated 31.12.2013 was set aside and the matter remitted to the assessing authority, to pass a fresh assessment order. It may be noted, the first appeal authority had made an omnibus observation that the assessing authority had not considered the objections raised by the assessee. Thus, the first appeal authority set aside the assessment order and remitted the matter to the assessing authority. The assessee carried the matter to the Tribunal in Second Appeal No. 52 of 2019. It may be noted here, the revenue did not challenge the order of remand made by the first appeal authority. 10. Perusal of the record reveals, the Tribunal has considered the submissions advanced by the assessee on merits. Thereafter, it has chosen to deal with the appeal on merit issues. The assessee is not aggrieved by that procedural approach adopted by the Tribunal. In that, the Tribunal has reached a conclusion, the assessee was executing a 'works contract' to the extent of 59% of the total constructions being raised by it i.e. 403 out of 681 residential flats in the scheme described J.M. Orchid . To that extent, the Tribunal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to raise such constructions. 12. Second, it has been strenuously urged, the Allotment Letters (allotting 403 out 681 flats i.e. 59% of constructions being raised) are nothing but simple Allotment Letters that may never be construed as any agreement . Those are unregistered documents. Such Allotment Letters are not agreements in terms of Section 2(au) of the Act. Those Allotment Letters did not create enforceable rights in the allottees and to that extent 'works contract' never arose, in the present facts. 13. Third, referring to the decision of the Supreme Court in K. Raheja Development Corporation Vs. State of Karnataka 2005 NTN (Vol 27) 243 (hereinafter referred to as the 'K. Raheja case') and L T case, it has been forcefully submitted, the facts of those two cases and therefore, the ratio laid down by the Supreme Court is wholly distinguishable and not applicable to the present facts. Elaborating his submissions, learned Senior Counsel for the assessee has submitted, in those cases, there existed a tripartite agreement involving the owner of the land on one hand; the developer or the builder (who had agreed to raise constructions on the land of the owne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ibed by law and further, since it was clearly stipulated thereunder that the builder/developer may not make any variation or deviation contrary to that agreement and also since, in those cases, valuable rights were created in favour of the allottees in presenti, whereunder they were described as 'Prospective Purchasers', an agreement was found to have been formed creating visible and enforceable 'works contract', as defined under the relevant taxation laws - then in force, in the states of Karnataka and Maharashtra. 16. Since no such agreement existed and since no such rights were ever created in the present case and in any case, since no such rights can ever be seen or be inferred to be existing in favour of an allottee of any of the 681 residential flats constructed by the assessee, over his own land (under the scheme J.M. Orchid ), no 'works contract' existed, in view of the language of Section 2(au) of the Act. To draw a distinction from the ratio in the decision of the Supreme Court in K. Raheja case and the L T case, learned Senior Counsel for the assessee has pressed into service another decision of the Supreme Court in CIT Vs. Sun Engineering ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ety. Heavy reliance has been placed on various clauses of the Allotment Letters, in the present case. In that light, reliance has been placed on the decision of the Supreme Court in Suraj Lamp Industries Pvt. Ltd. Vs. State of Haryana Anr., (2012) 1 SCC 656. Thus, it has been urged, transfer of immovable property by way of sale can be made only through a deed of conveyance (sale deed). In its absence, no right, title or interest in an immovable property may ever arise or be created or be transferred. In that case, it was clearly ruled, no transfer would arise on the strength of a power of attorney. Similarly here, the Allotment Letter creates no conveyance in favour of the allottee. The property with respect to which any Allotment Letter may have been issued being an immovable property, rights between the parties to the Allotment Letter could be altered only through a registered sale deed. During the course of constructions being made by the assessee in the Assessment Year in question, that stage was not reached. No sale deed came to be executed in the year in question. In absence of any sale deed and further, in absence of any agreement to sell, the Court may not infer existen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 184 of 2012 (CTT Vs. M/s Assotech Realty Pvt. Ltd.) came to be dismissed by a learned single Judge of this Court, vide order dated 20.09.2012. That order has attained finality. Therefore, no different/other view may be taken, in the present proceedings. 22. Then, another division bench decision of this Court in Express Projects Pvt. Ltd. Vs. State of U.P., 2013 NTN (53) 144 took note of the earlier division bench decision of this Court in Assotech Realty Pvt. Ltd., Delhi (supra) and the order of the Supreme Court in Civil Appeal arising from that decision and, thereafter reiterated the principle laid down by the Supreme Court i.e. individual facts and evidence would have to be examined in each case, by the revenue authorities. Thus, that writ petition was dismissed as withdrawn, with liberty given to that assessee to raise appropriate challenge in statutory proceedings. 23. Similar course is stated to have been adopted by another learned single Judge of this Court in Supertech Ltd. NOIDA Vs. Commissioner, Commercial Tax, U.P. Lucknow, 2017 NTN (63) 136. There, the matter was remanded, applying the test laid down by the Supreme Court in Assotech Realty Pvt. Ltd., Delhi (supra) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion/incorporation. 26. Referring to the books of accounts of the assessee as have been accepted, it has been shown, the goods incorporated in the alleged 'works contract' were valued at Rs. 19,78,16,069/-. Referring to the grounds of appeal as raised before the Tribunal, it has been submitted, the assessee never accepted or admitted addition to be made to that value @ 10%. If at all, the value of goods alleged to have been incorporated in a 'works contract' should have been taken at the book value and not more. In that context, it has been submitted, the decision of the learned single-Judge of this Court in The Commissioner, Commercial Tax Vs. S/S Design Arch Infra Pvt. Ltd. does not decide the issue at hand. That issue though had arisen in that revision, it was not pressed by the revenue. Therefore, at present, the Tribunal has completely erred in relying amongst other on that decision, to make an addition of 10% to the value of the goods incorporated in the alleged work contract, executed by the assessee. Since final authoritative decision had never arisen on this issue, it was open to the assessee to raise the issue and the Tribunal ought to have decided the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are created and or intervene, whether by way of a bipartite agreement or tripartite agreement or any other agreement involving one or more than one other party/parties, besides the land owner. In those situations, Allotment Letter is issued as a consequence of another agreement often described as a Builder Agreement or a Development Agreement etc; wherein (i) a third party may agree to develop the land owned by the land owner or (ii) the land owner may himself enter into a bipartite agreement with the persons who may eventually come to occupy the constructions being raised. In either case, upon issuance of Allotment Letter, a work contract would arise no sooner than its issuance, against consideration. In that case whether the eventual owner of the accommodation/building/part of building etc. is described as an allottee or an applicant or a prospective purchaser, would remain a matter of nomenclature only. It would not affect the nature of rights created. Once the right to occupy the constructions arises in favour of such other persons (either under a bipartite agreement entered into directly with the land owner or a tripartite agreement between the allotment on one hand, with th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... whatever reason. In that event, subsequent to the cancellation, the constructions made would stand on the same footing as if raised by the owner or the builder, as the case may be, on his/their own account. However, up to the stage of cancellation, the constructions raised would remain liable to suffer the levy of 'works contract tax. 33. Third, it has been submitted, the stipulations in the agreement between builder and the allottee owner/ and or builder and the allottee would not have the effect of negating or rebutting the evidence of existence of works contract as had otherwise arisen, primarily on the strength of the Allotment Letter. Thus, the requirement for the levy of tax on execution of works contract was satisfied in terms of the definition of works contract under Section 2(au) of the Act. Once that test is seen satisfied, the inquiry must end the consequence of law, i.e. the levy of tax would arise by the necessary operation of law, thereupon. It would not remain subservient or dependent on the further conduct of the parties to the transaction namely, the owner and or the builder on one hand and the allottee on the other. Only exception thereto is the eve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case, provisions of Section 2(ac) being definition of 'sale', 2(ad) being definition of 'sale price' and 2(au) being definition of 'works contract' read as below: 2(ac) sale with its grammatical variations and cognate expressions, means any transfer of property in goods (otherwise than by way of a mortgage, hypothecation, charge or pledge) by one person to another, for cash or for deferred payment or for any other valuable consideration and includes, (i) a transfer, otherwise than in pursuance of a contract of property in any goods for cash, deferred payment or other valuable consideration; (ii) a transfer of property in goods (whether as goods or in some other form) involved in the execution of a works contract; (iii) the delivery of goods on hire purchase or any other system of payment by installments; (iv) a transfer of the right to use any goods for any purpose (whether or not for a specified period) for cash, deferred payment or other valuable consideration; (v) the supply of goods by an association or body of persons (whether incorporated or not) to a member thereof for cash, deferred payment or other valuable considera ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e sale price but any ex post facto grant of discounts or incentives or rebates or rewards and the like shall not be excluded from the sale price; (ae) .. .. .. (au) works contract includes any agreement for carrying out, for cash, deferred payment or other valuable consideration, the building construction, manufacture, processing, fabrication, erection, installation, fitting out, improvement, modification, repair or commissioning of any movable or immovable property. 38. Under Section 3(vi) of the Act, the turnover of sale of goods involved in the execution of 'works contract' is to be determined in accordance with the prescribed Rules namely, Rule 9 of the Rules framed under the Act. Rule 9 of the Rules reads as under: 9. Period for conveyance of title of promoter to organisation of flat purchasers.- If no period for conveying the title of the promoter to the organisation of the flat purchasers is agreed upon, the promoter shall (subject to his right to dispose of the remaining flats, if any) execute the conveyance within four months from the date on which the Co-operative society or the company is registered or, as the case may be. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ATURE TITLE OF ALLOTMENT 3.1 The aforesaid group housing project is raised on the lease hold plot of 20,000 Sq. Mirs, Allotted by the NOIDA Authority registered Lease Deed dated 30.07.2010 and the Allottee(s) shall remain bound by all the terms and conditions contained in the said Lease Deed, executed between the Noida Authority and the Company. The Lease Deed is registered with the Sub Registrar-III, Noida as Registered Document No. 3193, Book No.1, Zild No 2017, on pages 127 to 168, dated 30.07.2010. 3.2 That as per the terms and conditions of the main lease, executed by Noida Authority in favour of the Company, the allotment of the flat shall be subject to the execution of Sub-Lease Deed between the Noida Authority, Company and the Allottee(s), in respect of the land but super structure shall be on outright sale basis. The document/title of transfer deed shall be made and registered accordingly. 3.3 The Lease Deed executed by Noida Authority in favour of the Company is for a period of 90 years from the date of its execution, accordingly the Sub-Lease Deed to be executed in favour of the Allottee(s), expiring correspondingly with the expiry date of the Lease Deed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... project JM ORCHID at Plot No, GH-01/C, Sector-78, Noida, District Gautam Budh Nagar, UP and allotment is valid for this project of the company and not liable to be transferred to any other project of the company. 12.2 The transfer of allotment is not permissible, however it may be permitted at the discretion of the company in the exceptional cases only, subject to payment of administrative charges @ __________plus govt. taxes of super area of flat. 13. PAYMENT PLAN 13.1 The Allottee(s) shall be required to make the payment as per the payment plan opted by him/her which is attached with Annexure (a). 13.2 That the costs relating to stamp duty and other incidental charges as applicable for registration of Sub-Lease Deed Conveyance Deed shall be paid separately by the Allottee(s) to the company before possession as and when demanded by the company. 14. CANCELLATION OF ALLOTMENT FORFEITURE OF MONEY That failure of the Allottee(s) to adhere to the payment plan will render this allotment cancelled and the company shall be free to re-allot the flat to any other buyer. That on termination of the allotment or cancellation of the same by the Allottee(s), the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... though full payment has been received by the petitioner. The petitioner is empowered to make variations/modifications in the plan, design and specification and possession is to be handed only upon payment of the entire amount. Taking into consideration, the terms and conditions of the letter of allotment, which have been reproduced above, we are of the considered opinion that the petitioner continues to remain the owner of the apartments/ flats including all constructions till such time the sale-deed is executed and registered in favour of the prospective allottees/purchasers. The payment of instalments by the prospective allottees/ purchasers do not transfer any right, title or interest in the construction undertaken by the petitioner. Thus, the constructions undertaken by the petitioner cannot be said to have been undertaken by it for and on behalf of the prospective allottees/ purchasers. 42. There upon, after a detailed consideration of the decision of the Supreme Court in K. Raheja case, the division bench finally concluded as below : 26. In the aforesaid case, the agreement provided that M/S K. Raheja Development Corporation, as developer on its own behalf and as de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (supra) came to be allowed by Tribunal. That order was not interfered with by this Court in exercise of revision jurisdiction, under Section 11 of the U.P. Trade Tax Act. Yet, no other or further conclusion may be reached from a plain reading of the order dated 29.2.2012 passed in Sales/Trade Tax Revision Defective No. 184 of 2012. That order reads as below: Cause shown is sufficient; delay in filing the revision is condoned. This revision has been filed by the State for the assessment year 2004-05 against the order of the Tribunal dated 14.12.2010. The question of law referred to is hereunder :- Whether on the facts and in the circumstances of the case, the Tribunal legally justified in setting aside the tax liability created by the assessing officer on the construction and sale of flats to be prospective owners treating the transaction as works contract ? The Tribunal has recorded findings that the assessee had made the flats on his own behalf and has even paid stamp duty on his own and therefore, this case is not covered under Section 3F of the Act. In view of the findings of fact recorded by the Tribunal, no question of law arises. This revision has n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... findings recorded by the Tribunal is treated to be correct or not, is an academic issue. Insofar as it can never be said that this Court chose to answer the question raised on strength of its own reasoning and insofar as it cannot be seen that this Court had ever reasoned that no works contract arose on the strength of the Allotment Letter etc., no reliance may be placed on that decision. The decision is what it says and nothing more. It is a decision on facts only. It may bind the parties to that dispute only, without creating any binding precedent. 49. The other decision of the division bench in the case of Express Projects Pvt. Ltd. (supra) and the still other decision of the learned single Judge in Supertech Ltd. NOIDA (supra), are clearer in effect. They only seek to enforce on the revenue authorities and the appeal authorities - the ratio of the decision of the Supreme Court in K. Raheja case and L T case. Both in case of Express Projects Pvt. Ltd. (supra) and Supertech Ltd. NOIDA (supra), the Court remitted the matter to the statutory authorities, leaving it open to them to consider the individual contracts and facts of those cases, in the light of the decision of the S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... b) When the person to whom the proposal is made signifies his assent thereto, the proposal is said to be accepted. A proposal, when accepted, becomes a promise; (c) The person making the proposal is called the promisor , and the person accepting the proposal is called the promisee ; (d) When, at the desire of the promisor, the promisee or any other person has done or abstained from doing, or does or abstains from doing, or promises to do or to abstain from doing, something, such act or abstinence or promise is called a consideration for the promise; (e) Every promise and every set of promises, forming the consideration for each other, is an agreement; (f) Promises which form the consideration or part of the consideration for each other, are called reciprocal promises; (g) An agreement not enforceable by law is said to be void; (h) An agreement enforceable by law is a contract; (i) An agreement which is enforceable by law at the option of one or more of the parties thereto, but not at the option of the other or others, is a voidable contract; (j) A contract which ceases to be enforceable by law becomes void when it ceases to be enforceable. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on areas, etc. Read co-jointly, they do bring out existence of mutual set of promises made, by the assessee and the allottees, creating corresponding liabilities and rights. All such promises, liabilities and rights arise against due consideration. Consequences of non-payment of consideration are also provided by way of cancellation of the Allotment Letter itself. Therefore, the allotment letter is clearly a document that may be described as an 'agreement' under the Contract Act. What therefore survives for consideration is, whether the linkage between such 'agreement' and the construction raised by the assessee exists as may further qualify the 'agreement' to be a 'works contract', within the meaning of that term of Section 2(au) of the Act. In the absence of denial, rather, in face of unexcepted admission as to execution of Allotment Letter and its continuance, the fact that the same was not registered etc., would remain extraneous, to the dispute at hand. 55. Though the Court may have ventured into a de novo exercise to evaluate that issue, at the same time, in view of the pronouncements of the Supreme Court in K. Raheja case and L T case, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tted by Mr. Hegde the definition of the term 'works contract' in the said Act is an inclusive definition. It does not include merely a works contract as normally understood. It is a wide definition which includes any agreement for carrying out building or construction activity for cash, deferred payment or other valuable consideration. The definition does not make a distinction based on who carries on the construction activity. Thus even an owner of the property may also be said to be carrying on a works contract if he enters into an agreement to construct for cash, deferred payment or other valuable consideration. We, therefore, do not need to go into the question whether the Appellants are owners as even if the Appellants are owners to the extent that they have entered into Agreements to carry out construction activity on behalf of somebody else for cash, deferred payment or other valuable consideration, they would be carrying out a works contract and would become liable to pay turnover tax on the transfer of property in the goods involved in such works contract. Further under the said Act there is no distinction between construction of residential flats or commercial u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so long as there is no termination the construction is for and on behalf of purchaser. Therefore, it remains a works contract within the meaning of the term as defined under the said Act. It must be clarified that if the agreement is entered into after the not or unit is already constructed, then there would be no works contract. But so long as the agreement is entered into before the construction is complete it would be a works contract. 60. Having looked at the terms of the agreement that are similar to those forming the substance of dispute in the present case, it is seen - here as well, the assessee was raising the constructions of residential accommodation. Though it may have started that construction activity on its own account, at the same time, it invited offers from the public at large and accepted such offers from particular individuals, against conditions agreed in writing. As noted above, on a mutual set of promises extended by the allottees and the assessee, the terms of the Allotment Letter and the agreement giving rise to a works contract arose. Thus, amongst others, it included a payment plan, adherence to which a sine qua non to the continued allotment in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce and or continuance of the Allotment Letter. Only restriction that may arise is - once the apartment is complete and entire value of goods involved therein incorporated in such flat in an Assessment Year, that position may not change, in the next year. This is also clearly spelt out by the Supreme Court in K. Raheja case, itself. 63. The correctness of that decision was doubted by another two judge bench of the Supreme Court. Thus, in L T case, the matter came to be referred to the three judge bench of the Supreme Court. Again, in that case, the L T was a developer seeking to raise constructions described as development over the land owned by an individual. There was an arrangement between the L T and the owner of the land that after the development, 25% of the total space would belong to the owner whereas 75% would belong to the L T yet, applications were invited from public for allotment of the proposed constructions. Upon Allotment Letters issued and also under an agreement to sell executed with intended purchasers, the constructed apartments were to be handed over to the individual purchasers with undivided interest in the land also. Sale deeds were thus executed in favour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arily be a sale of goods element. Works contracts also include building contracts and therefore without any fear of contradiction it can be stated that building contracts are species of the works contract. 95. Ordinarily in the case of a works contract the property in the goods used in the construction of the building passes to the owner of the land on which the building is constructed when the goods and materials used are incorporated in the building. But there may be contract to the contrary or a statute may provide otherwise. Therefore, it cannot be said to be an absolute proposition in law that the ownership of the goods must pass by way of accretion or exertion to the owner of the immovable property to which they are affixed or upon which the building is built. 65. Examination of the above discussion and reasoning given by the Supreme Court reveals, that Supreme Court found no reason why activity of construction would not be covered under the term of works contract . Also, though the ultimate transaction that may take place between the parties would be one of sale of an apartment, it was further reasoned, that may not dilute the existence of the works contract in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d services alone. Nothing in Article 366(29-A)(b) limits the term works contract . (iv) Building contracts are species of the works contract. (v) A contract may involve both a contract of work and labour and a contract for sale. In such composite contract, the distinction between contract for sale of goods and contract for work (or service) is virtually diminished. (vi) The dominant nature test has no application and the traditional decisions which have held that the substance of the contract must be seen have lost their significance where transactions are of the nature contemplated in Article 366(29-A). Even if the dominant intention of the contract-is-not-to-transfer the property in- goods and rather it is rendering of service or the ultimate transaction is transfer of immovable property, then also it is open to the States to levy sales tax on the materials used in such contract if such contract otherwise has elements of works contract. The enforceability test is also not determinative. (vii) A transfer of property in goods under clause 29-A(b) of Article 366 is deemed to be a sale of the goods involved in the execution of a works contract by the person. maki ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... finition which includes any agreement for carrying out building or construction activity for cash, deferred payment or other valuable consideration. (iii) The definition of works contract does not make a distinction base on who carries on the construction activity. Even an owner of the property may be said to be carrying on a works contract if he enter into an agreement to construct for cash, deferred payment other valuable consideration. (iv) The developers had under ken to build for the prospective purchaser. (v) Such construction/development was to be on payment of a in various instalments set out in the agreement. (vi) The developers were not the owners. They claimed lien on the property. They had right to terminate the agreement and dispose of the unit if a breach was committed by the purchaser. A clause like this does not mean that the agreement ceases to be works contract. So long as there is no termination, the construction is for and on behalf of the purchaser and it remains a works contract . (vii) If there is a termination and a particular unit is not resold but retained by the developer, there would be no works contract to that extent. ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the developer and the flat purchaser. It is not necessary to recapitulate all clauses of the agreement under KOFA or for that matter under MOFA. Raheja Development takes note of relevant clauses of the recitals and the agreement under KCFA. We need not repeat them. Similarly, Form V of the Maharashtra Ownership Flat Rules contains recital such as, 'as a result of the Development agreement the promoters are entitled and enjoined upon to construct buildings on the said land'. One of the relevant clauses (omitting unnecessary portion) in Form V reads, the promoter shall construct the said building/s....in accordance with the plans, designs, specifications .. which have been seen and approved by the flat purchaser with the owner, such variations and modifications as the promoter may consider necessary or as may be required by the concerned local authority/the government.....provided that the promoter shall have to obtain prior consent in writing to the flat purchaser in respect of variations or modifications which may adversely affect the flat of the purchaser. It is, thus, not correct to say that the work is undertaken by the developer for himself and for the owner and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he works contract would arise only upon issuance of Allotment Letter and would continue during its subsistence, qua the value/consideration that the assessee may receive during that period. 75. In view of the fact that the submissions advanced on the strength of KOFA and MOFA are found to be not relevant to the present controversy, the principle invoked by learned Senior Counsel for the assessee, on the strength of the decision of Sun Engineering Works (P) Ltd (supra) and Arulmozhi Iniarasu (supra) is wholly inapposite. That principle is not available to the present controversy. 76. As to the principle, every clause of the agreement /Allotment Letter would have to be seen, there can be no quarrel. In fact, it is that true test that has been applied by the Tribunal. This leads the Court to the conclusion that upon cojoint reading of all clauses of the Allotment Letter, it may be safely inferred-the assessee was executing a works contract , to the extent it was raising constructions against individual Allotment Letters issued and payments received there against. However, only to the extent and up to the validity or existence of such Allotment Letters, such works contract , ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9;्ठ 134, 135 के क्रमांक 101 के क्रमांक 11 में निम्न लिखित व्यवस्था दी गयी है। Taxing the sale of goods element in a works contract under articls 366-(29-A)(b) read with Entry 54 List II is permissible even after incorporation of goods provided tax is directed to the value of goods and does not purport to tax the transfer of immovable property. The value of the goods which can constitute the measure for the levy of the tax has to be the value of the goods at the time of incorporation of the goods in works even though property passes as between the developer and the flat purchaser after incorporation of goods. अपीलकर्त्ता द्वारा अपने हिसाब किताब विस&# ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... #2368; है वह नियम व कानून के विरुद्ध है। वैसे भी यह सर्वविदित हैं कि होलसेल मे व्यापार में । से 1.5 प्रतिशत के लाभांश तक होता है, जबकि अपीलकर्ता का तो निर्माण सामग्री का खरीद बिक्री का व्यापार भी नहीं है | ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 367;भागों से परमिशन, भाग दौड करके बिल्डिंग मैट्रीरियल की व्यवस्था व अलग अलग मद के मजदूरों की व्यवस्था में जो पापड़ बेलने पडते है उसी मेहनत के लिये ही अपीलकर्त्ता को मुनाफा प्राप्त होता है न कि सामग ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 359; 2010-2011, 1545/2013 af 2007-2018, 1546/2013 at 2008-2009, 1661/2013 वर्ष 2009-2010 आदेश दिनांक 11-11-2016 कमिश्नर वाणिज्यकर बनाम सुपर टैक लिए नोएडा, द्वितीय अपील संख्या 324/16 (10-11) आदेश दिनांक 27-10-2016, द्वितीय अपील संख्या 384/16 (11-12) आदेश दिनांक 27-10-2016 सर्वश्री सनवर्ल्ड रजीडेन्सी प्रालि बनम क&# ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... #2344;ः यह भी उल्लेखनीय है कि प्रथम अपील न्यायालय द्वारा निम्नलिखित मामलों में 2006 के स्थान पर 10 % निर्धारित किया गया था परन्तु विभाग द्वारा द्वितीय अपील तक भी दायर नहीं गयी। वरुणा फाइनेन्स प्रा०लि० डु ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6;०लिए, के मामलें में परित किया गया था। इस आदेश के विरूद्ध विभाग द्वारा रिवीजन संख्या 293/2015 माननीय इलाहाबाद उच्च न्यायालय में दाखिल किया गया था। माननीय इलाहाबाद उच्च न्यायालय द्वारा विधिवत सुनवाई क ..... X X X X Extracts X X X X X X X X Extracts X X X X
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