TaxTMI 
TaxTMI 
2010 (11) TMI 888
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....exercising the power of revision as per section 64(3) (b) of the Karnataka Value Added Tax Act, 2003, will it not amount to a revision proceeding without jurisdiction and also against the settled principles of law? (ii) Whether, in the facts and circumstances of the case, where 73.55 per cent of the built up area in the ST park which is retained by the appellant themselves and capitalised as asset as is evident from audited balance sheet and other documents submitted by the appellant, is it proper on the part of the respondent to remand the matter to the assessing authority? (iii) Whether, in the facts and circumstances of the case, the transaction between the appellant and the landowners for transfer of 26.45 per cent of built up area in....
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....n brief is that he is a property developer and entered into a Joint Development agreement with M/s. Manaylux Engineers Private Limited, M/s. Manay Wires and Metals and M/s. General Construction Company are the owners of the land in question. As a result of such arrangement a software technology park by name "M/s. Ozone Properties Pvt. Limited" has been put up by the appellant-company and in furtherance of the said agreement between the parties after completion of the project, 26.45 per cent of the built up area is to be transferred to the land owners in lieu of which they were to transfer 73.55 per cent of their undivided interest in the land to the appellant. The built up area of 73.55 per cent put up by the appellant remained with the dev....
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....nd belonging to the owners of the property. However, the assessing authority held that in view of 26.45 per cent built up area being handed over to the owners of the land and in the light of payment of various amounts amounting to Rs. 45 crores and odd to various sub-contractors it is a deemed sale as the goods in the property have passed onto the owners of the land. 5. Aggrieved by the same an appeal came to be filed before the Joint Commissioner of Commercial Taxes reiterating the ground of exchange of a portion of the built up area or undivided interest in the land of the owners. The appellate authority held that the transaction in question cannot be termed/deemed as a sale as there is total absence of receipt of money or payment of con....
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....based on the market value taken by the assessing authority alternative pleas were raised before the first appellate authority which were not at all considered by the first appellate authority. However, he submits that he would be withdrawing the said appeal before the Tribunal. 7. Subsequently, the revisional authority under suo motu revisional powers issued a show-cause notice to the present appellant proposing reversing the opinion of the first appellate authority and asking an explanation from the appellant-assessee why that portion of the built up area handed over to the owners cannot be termed as a deemed sale. He also refers to the proportionate cost of built up area by taking into account the total cost of the construction put up by....
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....the authorities referred to above. In all probability this exchange deed must have come subsequent to SMR proceedings. Therefore, there was no occasion for the appellant to place these documents before any of the authorities. He has also given us the list of the sub-contractors who are said to have executed various parts of the construction and it comes to about Rs. 44,89,32,098. Similarly he has given the details of the payment made to various sub-contractors. After the perusal of the entire list we note that some of the works contract were done by persons who were not registered dealers as no registration number is furnished to us in these details. The first appellate authority mainly relied upon the decision in the case of Commissioner o....
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....of transaction that was entered into between the parties, by virtue of exchange deed which came into existence in December 2009 it would be more clear for the authorities concerned to know whether the document of exchange amounts only exchange of nature put forth by the learned counsel for the appellant or terms of exchange deed amount to something else which would attract the ingredients of transaction of sale. Subsequent to amendment to article 366 by insertion of clause (29A), the authorities have to consider the material with reference to clause (29A) of article 366 of the Constitution because deemed sale is introduced by virtue of this provision. Therefore by looking to the terms of the exchange deed and also other material including t....