Documente Academic
Documente Profesional
Documente Cultură
to
our
mind
is
whether
sale
of
immovable
property
attracts any sales tax ? Under Sales Tax Laws the tax is
leviable only on sale of goods. As per Sales Tax Laws, only
moveable goods are considered to be goods. Therefore immovable
properties of any nature cannot fall in the Sales Tax net.
Therefore sale of flats/shops etc. cannot be subject matter of
Sales Tax. This is uncontroverted position and hence not dealt
with further. However, whether any particular transaction is
for sale of immovable property or is a transaction of sale of
moveable goods may become debatable.
Such issues mainly arise when alongwith immovable property
certain movable goods in fixed condition are also disposed of.
For example, while disposing of Factory building there may
also be disposal of machinery fixed in it. An attempt may be
made by Sales Tax authorities to say that to the extent of
machinery, there is sale. However this cannot be correct in
all cases. It depends upon nature of machinery installed. The
situation can be seen from two angles. If alongwith immovable
property
any
movable
goods
passes,
but
without
separate
before
property.
transfer
of
immovable
For
example,
the
sever
them.
In
such
cases,
even
if
values
of
factory
(S.A.
1826
of
1999
dt.31.10.2001),
Basawraj
Printing
&
480
of
1988
dt.30.9.89),
Paramount
Sinters
Contract
theory
and
transfer
of
immovable
property
immovable
Tribunal
property,
found
that
the
being
sale
agreements
of
for
constructed
sale
of
houses.
land
and
was
argued
that
it
is
sale
of
immovable
property,
to
Works
Contract,
being
separate
construction
contract.
A reference is also required to be made to the recent
judgment of Supreme Court in K. Raheja Construction (141 STC
298). In this case the developer constructing building but
selling the flats etc. before completion of construction (sale
- 3 under
Though
Construction)
the
is
judgment
is
held
liable
under
to
Works
Karnataka
Act,
Contract
Tax.
it
have
will
contrast
composite
contract
case
can
for
be
considered
providing
land
where
with
it
was
constructed
tenements.
In determination order in case of M/s.Rehab Housing Pvt.
Ltd.. & Larsen & Toubro Ltd.(JV) (WC-2003/ DDQ-11/Adm-12/B-276
dt.28.6.2004), the Commissioner of Sales Tax has held that the
transaction
is
composite
one
i.e.
providing
land
with
stated
contingencies
it
is
necessary
to
see
the
provides
for
definition
of
works
contract,
which
is
- 4 (ii) the transfer of property in goods whether as goods or in some other form involved in
the execution of a works contract namely, an 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 ----
of
this
paper
is
and
hence
the
contractor
to
discuss
about
discussion
in
liability
this
paper
on
is
can be as under.
(2) CONSTITUTIONAL & JUDICIAL HISTORY OF WORKS CONTRACTS
Entry 48 in list II of Seventh Schedule to the Government
of India Act, 1935 read as "taxes on the sale of goods and on
advertisement."
With
effect
from
January
26,
1950
our
certain
towards
by
the
turnovers
labour
company
(after
charges)
in
deducting
representing
respect
of
certain
certain
the
monies
contracts
used
in
building
contracts.
The
assessment
was
which
was
in
Constitution
of
India
company
not
liable
was
turnover.
opinion
On
by
the
came
same
different
force
to
on
into
pay
date
force
sales
question,
High
the
and
tax
there
Courts.
on
which
the
therefore
the
on
was
the
disputed
divergence
Ultimately,
the
of
Supreme
well
agreement
established
to
sell,
distinction
it
would
be
between
proper
a
to
sale
and
interpret
an
the
levy
tax
on
the
contracts,
such
as
works
contract,
compulsory
sales,
hire
purchase
transactions,
leases etc.
States craving for more and more revenue approached the
Center for getting powers to do what Gannon Dunkerley and
other
judgments
considered
all
have
these
undone.
The
matters
in
Law
Commission
its
61st
of
Report
India
and
366.
Definitions.-
In
this
Constitution,
unless
the
herein
respectively
assigned
to
them,
that
is
to
say.......
(29-A) 'tax on the sale or purchase of goods' includes-(a) a tax on the transfer, otherwise than in pursuance of a
contract of property in any goods for cash, deferred payment
or other valuable consideration ;
(b) a tax on the transfer of property in goods (whether as
goods or in some other form) involved in the execution of a
Works Contract ;
(c) a tax on the delivery of goods on hire-purchase or any
system of payment by installments ;
(d) a tax on the 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 ;
(e)
tax
on
the
supply
of
goods
by
any
unincorporated
ultimately
delivered
its
taken
to
landmark
Supreme
Court.
judgment
in
The
case
Supreme
of
Court
Builder's
in
course
import/export
of
and
inter-State
also
the
trade
and
restrictions
in
and
course
of
conditions
Property
in
Goods
involved
in
the
Execution
of
Works
of
required
Works
to
Contract,
do
the
something
Seller
more
to
(i.e.,
the
Contractor)
goods,
then
is
simple
The
contractee
is
also
not
interested
in
taking
the
interested
in
purchasing
the
spare
parts
but
further
to
determine
the
nature
of
transaction.
By
46th
DIVISIBLE/INDIVISIBLE CONTRACTS
'Sale' transactions are always subject to contract between the
parties;
i.e.
the
seller
and
purchaser.
Thus
whenever
the
- 9 parties
want
to
make
transaction
divisible,
the
parties
completed.
If
such
division
is
not
made
and
composite
are
made
divisible,
proper
documentation
with
paper
the
discussion
is
restricted
to
contracts
of
this
on
his
situation
own
normally
plot.
He
will
builder
will
purchase
the
develop
building
there
is
sale
of
any
moveable
items
like
sale
of
of
recent
judgment
in
case
of
K.
Raheja
to tax. In
from
other
states
in
above
situation,
can
be
materials
against
forms.
When
he
purchases
fulfilling
Therefore,
condition
purchases
of
against
permissible
C
form
is
uses
not
in
form.
allowable
to
development
agreement.
It
is
assumed
here
that
the
will
flats/shops.
be
The
constructing
flats/shops
may
building
be
sold
for
to
sale
of
prospective
from
customer.
Thus
this
activity
also
does
not
by
various
determination
orders
passed
by
the
change
is
required
to
be
noted
here
about
recent
developer/builder
completed
through
the
gets
the
contractor.
He
work
may
of
construction
award
the
whole
or
not,
no
liability
on
builder
can
arise
as
no
question
of
any
liability
under
VAT
Act.
Thus
the
the
TDS
provisions
under
VAT
Act
are
also
discussed subsequently.
(5) Contractors liability vis--vis Construction Contracts/
MVAT Act
The main issue in relation to immovable properties is the
issue of tax on contractors appointed for construction. As is
the case in majority of cases, the construction is done by
contractors.
provisions
of
VAT
Act
to
know
the
burden
upon
the
- 16 (a) labour and service charges for the execution of the works where the labour and
service done in relation to the goods is subsequent to the said transfer of property;
(b)
(c)
(d)
charges for obtaining on hire or otherwise, machinery and tools for the
execution of the works contract;
(e) cost of consumables such as water, electricity, fuel used in the execution of
works contract, the property in which is not transferred in the course of execution of
the works contract;
(f)
cost of establishment of the contractor to the extent to which it is relatable to
supply of the said labour and services;
(g)
other similar expenses relatable to the said supply of labour and services,
where the labour and services are subsequent to the said transfer of property;
(h)
profit earned by the contractor to the extent it is relatable to the supply of said
labour and services:
Provided that where the contractor has not maintained accounts which enable a
proper evaluation of the different deductions as above or where the Commissioner finds
that the accounts maintained by the contractor are not sufficiently clear or intelligible,
the contractor or, as the case may be, the Commissioner may in lieu of the deductions
as above provide a lump sum deduction as provided in the Table below and determine
accordingly the sale price of the goods at the time of the said transfer of property.
Table
Serial
No.
(1)
(2)
(3)
roads, etc.
6
- 17 8
construction of trucks
11
Laying of pipes
12
Tyre re-treading
13
14
* The percentage is to be applied after first deducting from the total contract
price, the amounts paid by way of price for the entire sub-contract to subcontractors, if any.
(a)
As
stated
contractor
pays
above
tax
reduction
under
of
set
Composition
off
will
Scheme.
He
arise
if
will
be
will
not
be
hit
by
above
prohibition.
The
be
responsible
for
the
other.
However,
by
specific
The contractor
other
party.
In
case
the
contractor/sub-contractor
is
Amount to be
deducted
2% of the amount
State Government,
payable as above
in the case of a
contractor who is
a registered
dealer and 4% in
any other case.
2% of the amount
payable as above
in the case of a
contractor who is
a registered
dealer and 4% in
2% of the amount
payable as above
in the case of a
contractor who is
a registered
dealer and 4% in
any other case.
2% of the amount
payable as above
in the case of a
Contonment Board,
contractor who is
a registered
dealer and 4% in
any other case.
2% of the amount
payable as above
in the case of a
contractor who is
a registered
dealer and 4% in
any other case
2% of the amount
payable as above
2002.
in the case of a
contractor who is
a registered
dealer and 4% in
any other case
An Insurance or Finance
2% of the amount
Corporation or
payable as above
in the case of a
Schedule
contractor who is
a registered
dealer and 4% in
Reserve Bank
of India.
- 22 -
2% of the amount
payable as above
in the case of a
contractor who is
a registered
dealer and 4% in
any other case
2% of the amount
payable as above
in the case of a
contractor who is
a registered
dealer and 4% in
any other case
xi) In relation to advance payment, the TDS will apply as and when
the advance payment is adjusted towards the actual amount
payable to the contractor.
xv)
xvii)
or
used
in
the
same
form
in
the
execution
of
moved
from
other
state,
there
is
no
movement
of
such
local
sale
within
state
where
the
contract
is
being
executed.
It is pertinent to note that if the sale under works contract
is proved to be in course of inter-state trade or in course of
import, no tax will be attracted on the same as the 'sale'
under CST Act did not include the Works Contract till its
amendment which is effective from 11.5.2002. For example, if
an assessee had taken a contract in Maharashtra where the
specified
goods
to
be
used
in
Works
Contract
are
to
be
Contract
11.5.2002.
On
till
the
amendment
other
hand,
which
if
is
effective
instead
of
from
moving
other
state
is
proved
to
be
due
to
sale
under
Works
it
will
Works
Contract.
be
considered
As
stated
as
inter-state
above
whether
purchase
the
under
movement
is
raw
materials.
movement
of
The
finished
liability
goods
and
can
not
arise
in
in
relation
relation
to
to
raw
course
of
import
under
Works
Contract
still
remains
involved
in
the
contract.
The
composition
scheme,
for
arriving
at
the
taxable
portion.
However
in
local
generally
rate.
exempt
It
is
under
needless
local
to
Act,
add
the
that
said
if
goods
goods
will
are
be
exempt under CST Act also. Then the rates are to be decided
alongwith rates under VAT Act,2002.
As mentioned above, when raw materials are transferred to
other state, where after necessary fabrication etc. the goods
are used in Works Contract, the transaction will be covered
under Local Act. However since there is transfer of goods from
one state to other, in light of amended provisions of section
6A
of
CST
Act,
the
state
authorities
from
where
the
raw
- 27 -
in
purchase
strict
of
Maharashtra
sense
the
for
use
goods
by
Circular
'C'
in
No.3
Forms
works
of
cannot
be
contract.
1992
used
However,
dated
28.2.92
for
in
the
after
amendment
in
definition
of
sale
in
Central Sales Tax Act from 11.5.2002, it can be said that now
the dealer can use C form for effecting purchases of goods
for use in Works contract as per law under Central Sales Tax
Act.
CONCLUSION
The topics relating to tax legislations are evergreen topics
as
day-to-day
amendments
judgments
new
to
and
legislation
developments
the
Provisions,
interpretations.
each
case
is
go
on.
there
Also
In
are
in
unique
addition
changes
the
case
field
and
to
due
to
of
tax
the
tax
theory
can
be
laid
down
for
any
kind
of
tax