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TMI Blog2007 (10) TMI 565X X X X Extracts X X X X X X X X Extracts X X X X ..... nt of a coordinate Bench of the Tribunal? Whether, in the facts and circumstances of the case, charges received for creation of common amenities that are not sold to any person but only a right to use thereof is provided, would be liable to tax under the provisions of the Karnataka Sales Tax Act, 1957? Held that:- The concurrent findings on fact recorded by the authorities holding that there is sale in favour of the residents as defined under section 2(1)(t) of the KST Act and in terms of the TP Act is perfectly based on valid and cogent reasons and the transfer is for valid consideration. Therefore, the findings of fact recorded in the impugned orders are neither erroneous nor an error in law. Merely because one Member of the Be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 the judgment of a coordinate Bench of the Tribunal? 15.. Whether, in the facts and circumstances of the case, charges received for creation of common amenities that are not sold to any person but only a right to use thereof is provided, would be liable to tax under the provisions of the Karnataka Sales Tax Act, 1957? The brief facts of the case are, the petitioner is a proprietary firm engaged in real estate business and is also a developer. It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 purchasers. Therefore there is no sale as defined under section 2(1)(t) of the KST Act in terms of the Transfer of Property Act, 1882. Hence fastening liability under section 5B read with section 17(6) of the Act is not legal and valid. The counsel further contended that the assessment order passed by the assessing authority, confirmed by the first appellate authority and the Tribunal is vitiated in law as the same is contrary to section 2(1)(t) of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o 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 assessee, which is confirmed by the two authorities, is in accordance with law and the same does not warrant interference. With reference to the above legal rival contentions, we have to answer questions framed in paragraphs 14 and 15 against the assessee for the following reasons: The Tribunal, with reference to the rival legal contentions and the undisputed facts urged by the learned counsel for the parties, has answered the point f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 concurrent findings on fact recorded by the authorities holding that there is sale in favour of the residents as defined under section 2(1)(t) of the KST Act and in terms of the TP Act is perfectly based on valid and cogent reasons and the transfer is for valid consideration. Therefore, the findings of fact recorded in the impugned orders are neither erroneous nor an error in law. In our considered view, questions framed at paragraphs 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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