2007 (10) TMI 565

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....l grounds in support of the following three substantial questions of law framed at paragraphs 13, 14 and 15 in the revision petition: "13. Whether, in the facts and circumstances of the case, the Tribunal was right in dismissing the appeal in S.T.A. No. 2601 of 2004 despite knowing that a coordinate Bench of the Tribunal had, in its judgment dated September 11, 2003, recorded a contrary finding in respect of the appeal filed by the very same petitioner for earlier assessment period? 14.. Whether, in the facts and circumstances of the case, the Tribunal was justified in rejecting the review petition although it had committed an error apparent on the face of the record by dismissing the appeal in S.T.A. No. 2601 of 2004 by dissenting from t....

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....received by the petitioner are liable for tax under section 5B read with section 17(6) of the Act. Aggrieved by the same, the petitioner filed first appeal but it was dismissed. The petitioner filed second appeal before the Karnataka Appellate Tribunal. The Tribunal also concurred with the assessing authority and dismissed the second appeal also. Even the revision petition filed was also dismissed by the Tribunal; the present petition is filed questioning the correctness of these orders. The learned counsel for the petitioner contended that even though there is use of materials such as sand, jelly, cement, etc., to carry out the developmental works only easementary rights is provided for which no consideration is received from the purchase....

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....civil works for the formation of layout is admitted by the assessee but the contention that there is no transfer of the same in favour of the purchasers as it is only for common usage, this contention is wholly untenable in law. She further submits that any layout formed shall be in accordance with the provisions of either Bangalore Development Authority Act, 1976 or Karnataka Development Authority Act, 1987 and providing common facilities to the residents of the layout is mandatory in a residential layout. Therefore, she submits that there is transfer of common facilities also in favour of the buyers and the same falls within the definition of section 2(1)(t) of the KST Act and in terms of the TP Act. Thus, fastening of liability on the a....

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....e KST Act and the TP Act to the residents of the layout. The contention urged by the learned counsel for the assessee that the assessee is not liable to pay tax under section 5B read with section 17(6) of the KST Act is wholly untenable in law and therefore we cannot accept the same. No material is produced by the assessee before the assessing authority to show that the expenditure incurred for the formation of layout and providing common facilities to the respondents is not part of the sale consideration. In the absence of common facilities in a layout nobody will buy the sites. Therefore, there is transfer of common facilities provided in the layout also along with the sale of sites/plots in favour of the residents. Therefore, the concu....