ASHWANI KUMAR MISHRA,J. - (1.) These two revisions have been filed under Section 58 of the U.P. Value Added Tax Act, 2008, arising out of assessment proceedings for the year 2010-11 and 2011-12. The assessee company is a developer/builder, which has raised constructions of flats upon the land owned by it, with the object of ultimately transferring it to prospective buyers. The assessee has also entered into a contract for transfer of constructed flats/buildings, and various amount from the allottees have been received. The department has treated raising of construction by the revisionist 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 judgment of the Apex Court in K. Raheja Development Corporation v. State of Karnataka, reported in 2005 (5) SCC 162 , as well as judgment in M/S. Larsen and Toubro Limited and another v. 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 Agarwal for the revisionist, contends that the facts/transaction, which was subject matter of consideration by the Apex Court in the cases of K. Raheja Development Corporation (supra) and M/S. Larsen and Toubro Limited (supra) were quite distinct, inasmuch as the ownership of the land, over which constructions were being raised, was retained by the owners, and the builders had entered into a tripartite builders' agreement for the purposes of raising construction with the object of transferring it to the prospective buyers. In the facts of these two cases, it is also noticed that rights in the land were also transferred to the prospective buyers. It is in that context that the Hon'ble Supreme Court has been pleased to hold that the contract for raising construction with object of transferring it to the ultimate purchaser constituted a works contract, so as to attract liability of tax. However, in the facts of the present case, the builder is the owner of land itself, and no rights are created in favour of the prospective buyers, merely on account of transfer of land. It is stated that the terms of allotment letters have been extensively adduced before the Tribunal, but they have not been taken note of it. It is also stated that by virtue of law laid down by the Apex Court in Suraj Lamp and Industries Private Limited (2) through Director v. State of Haryana and another, reported in 2012 (1) SCC 656 , it is settled that transfer of immovable property can only be by way of registered 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.) Learned Standing Counsel appearing for the State has advanced arguments in order to justify the order of Tribunal. It is stated that in the facts and circumstances of the present case, a works contract had come into existence, and the goods and materials used in connection with such contract were liable to be taxed, in accordance with law.;