JUDGMENT : Saumitra Dayal Singh, J. Hon'ble Saumitra Dayal Singh, J.-Heard Shri Rakesh Ranjan Agarwal, Senior Advocate, assisted by Shri Suyash Agarwal and Shri Nitin Kesharwani, learned counsel for assessee and Shri A.C. Tripathi, learned standing counsel for the revenue. 2. Present revision has been filed by the assessee under Section 58 of the Uttar Pradesh Value Added Tax Act 2008 (hereinafter referred to as the 'Act') against the order of the Commercial Tax Tribunal, Bench II, NOIDA, dated 29.6.2019 passed in Second Appeal No. 52 of 2019 for the A.Y. 2010-11 (U.P.). By that order, the Tribunal has partly allowed the assessee's appeal and granted partial reduction in the value 1of goods incorporated in 'works contract' executed by the assessee and thus reduced the tax assessed on 'works contract'. However, on the main issue, whether the constructions raised by the assessee were by way of execution of 'works contract', the finding has been returned in the affirmative i.e. against the assessee. 3. Similar position prevails in other revisions connected to the present revision. Some of those revisions have been filed by other assessees. However, learned Senior Counsel for the assessee stated, the issue involved in all cases is one and the same. Also, in certain other cases, the Tribunal has taken the opposite stand i.e. in favour of the assessee. Thus, Sales/Trade Tax Revision Nos. 671 of 2013, 207 of 2013, 208 of 2013, 209 of 2013, 210 of 2013 have been filed by the revenue, raising the same issue (from the other perspective). Learned Standing Counsel has pointed out, those revisions (filed by the State), had arisen prior to the decision of the Supreme Court in Larsen and Toubro Limited and another v. State of Karnataka and another, 2013 NTN (53) 65 (hereinafter referred to as the 'L&T case'). 4. In such circumstance, all the revisions being decided today came to be tagged. Accordingly, they were heard on various dates interspersed with adjournments that became necessary owing to roster changes experienced by way of regular routine of the Court in its day-to-day functioning. The order itself took time to correct, finalize and upload on 31.5.2023, with prior oral intimation to learned counsel for the parties. 5. Accordingly, they were heard on various dates interspersed with adjournments that became necessary owing to roster changes experienced by way of regular routine of the Court in its day-to-day functioning. The order itself took time to correct, finalize and upload on 31.5.2023, with prior oral intimation to learned counsel for the parties. 5. For the sake of convenience and as has been suggested by learned counsel for the parties, the submissions were first advanced in the present revision being Sales/Trade Tax Revision No. 333 of 2019 (J.M.Housing Ltd. v. The Commissioner Commercial Tax) for the A.Y. 2010-11 (U.P.). Accordingly, it is being decided first. 6. This revision was admitted on the following questions of law: ''(i) Whether on the facts and circumstances of the case, the Tribunal has erred in not distinguishing the ratio of the decisions of the Supreme Court in the case of K. Raheja and Larsen & Toubro to the facts of the present case inasmuch as there was neither tripartite agreement nor any prior sale-deed nor had the assessee otherwise executed any works contract on behalf of the eventual purchasers with respect to construction raised by the assessee on its own land? (ii) Whether in the alternative the Tribunal was right in sustaining the addition of 10% in purchase of value of goods for calculating the deemed sale, ignoring the value of goods at the time of incorporation of goods consumed in the construction even though the property in goods passes later on?'' 7. No other question has been pressed or stated to be arising in this batch of cases. Undisputedly, the assessee claims to be the lessee of land ad measuring 20900 sq.mtrs, at district Gautam Budh Nagar. It further claims to have decided to develop on that land, a residential housing scheme - 'J.M. Orchid', comprising of two and three bedroom flats, numbering about 684, in all. Without entering into any further agreement with any developer or any third party, the assessee then claims to have started construction of the above described 684 flats, from its own funds. The revenue authorities found those apartments being constructed during the Assessment Year in question. In that circumstance, the Special Investigation Branch of the revenue department conducted a spot inspection/survey of the assessee's business activity, on 21.7.2012. The revenue authorities found those apartments being constructed during the Assessment Year in question. In that circumstance, the Special Investigation Branch of the revenue department conducted a spot inspection/survey of the assessee's business activity, on 21.7.2012. At that time, it was alleged (by the revenue authorities), 550 out of total 684 flats were being constructed for prospective buyers. Later, the assessee was visited with assessment proceedings, on that issue. 8. The assessee submitted its reply to the notice and contested the claim of the revenue. Ultimately, the final assessment order for the A.Y. 2010-11 was passed on 31.12.2013, by the Deputy Commissioner, Commercial Tax, Sector 12, NOIDA. As recorded in that order, different number of flats were found carrying the status - 'booked' (on different dates) during that Assessment Year. Those were specified in that assessment order itself. The assessing authority took a view, only 403 out of 681 flats (being constructed by the assessee), were booked by third parties (hereinafter described as 'allottees'). Thus 59% of the flats being constructed by the assessee were treated 'booked' by the allottees/third parties. That percentage of flats has been treated by the assessing authority to be representative and descriptive of the extent of 'works contract' executed by the assessee in the project - 'J.M. Orchid', during the assessment year in question. In proportion to that, the assessing authority then considered the purchase value of goods such as iron and steel, hardware, brick, sand, plywood, concrete, timber, cement etc., to compute the value of goods, incorporated in that 'works contract'. To that value, the assessing authority added an assumed profit @ 21%. Thus, the assessing authority determined the turnover of goods incorporated in the execution of the 'works contract' at Rs. 26,32,66,106/-. On that, total tax was computed, Rs. 1,51,32,365/-. Adjusting the figure of ITC Rs. 84,64,027/-, net demand of tax Rs. 66,68,338/-, was created. 9. Against the above assessment order, the assessee preferred statutory first appeal. By the order dated 28.10.2017 passed by the Additional Commissioner Grade-II (Appeal) First, Commercial Tax, NOIDA, the assessee's appeal was allowed. The original assessment order dated 31.12.2013 was set aside and the matter remitted to the assessing authority, to pass a fresh assessment order. It may be noted, the first appeal authority had made an omnibus observation that the assessing authority had not considered the objections raised by the assessee. The original assessment order dated 31.12.2013 was set aside and the matter remitted to the assessing authority, to pass a fresh assessment order. It may be noted, the first appeal authority had made an omnibus observation that the assessing authority had not considered the objections raised by the assessee. Thus, the first appeal authority set aside the assessment order and remitted the matter to the assessing authority. The assessee carried the matter to the Tribunal in Second Appeal No. 52 of 2019. It may be noted here, the revenue did not challenge the order of remand made by the first appeal authority. 10. Perusal of the record reveals, the Tribunal has considered the submissions advanced by the assessee on merits. Thereafter, it has chosen to deal with the appeal on merit issues. The assessee is not aggrieved by that procedural approach adopted by the Tribunal. In that, the Tribunal has reached a conclusion, the assessee was executing a 'works contract' to the extent of 59% of the total constructions being raised by it i.e. 403 out of 681 residential flats in the scheme described 'J.M. Orchid'. To that extent, the Tribunal has confirmed the finding of the assessing authority. As to the quantification of turnover i.e. value of goods incorporated in such 'works contract', the Tribunal has altered the computation made by the assessing authority. It has considered the book value of goods incorporated in the 'works contract' and reduced the enhancement made to the same (profit) to 10%. Accordingly, it has determined the assessed tax at Rs. 6,30,031/-. 11. Learned Senior Counsel for the assessee has submitted, historically, tax on value of goods incorporation in the execution of 'works contract' fell outside the ambit of the legislatures. Thus, no tax could be imposed treating the same to be sale of goods. Only by virtue of the 46th Constitutional Amendment made and the consequential amendments to the State taxation laws as also to the Central Sales Tax Act, 1956, 'works contract' came to fall within the ambit of the laws pertaining to levy of tax on sale of goods. Only by virtue of the 46th Constitutional Amendment made and the consequential amendments to the State taxation laws as also to the Central Sales Tax Act, 1956, 'works contract' came to fall within the ambit of the laws pertaining to levy of tax on sale of goods. Referring to Section 2(au) read with Section 2(ac) of the Act, it has been submitted, for any transaction to fall within the definition of a 'works contract' - for the purpose of taxation under the Act, it must arise under an 'agreement', amongst others to raise constructions, may be of the kind the assessee raised in the present case. Unless that vital requirement of law is first seen - clearly met i.e., unless the constructions are raised pursuant to a prior written agreement, it may never be inferred that such construction had been raised by way of a 'works contract' on behalf of a person other than the land owner. In the present case, undisputedly the assessee is the owner of the land over which the constructions were being raised. As the owner and person in absolute title and possession over the land, the assessee chose to raise its own constructions namely 684 residential flats, of various specifications of its choice. For that purpose, it arranged its finances; applied for sanction of map from the NOIDA; obtained sanction of map and; started raising constructions from its own funds. All the while, the assessee never parted with the title or possession, either over the land or the residential flats being constructed by it. It did not create any interest in any third party during the progress of such constructions by it. In short, it did not enter into any prior 'agreement' to raise such constructions. 12. Second, it has been strenuously urged, the Allotment Letters (allotting 403 out 681 flats i.e. 59% of constructions being raised) are nothing but simple Allotment Letters that may never be construed as any 'agreement'. Those are unregistered documents. Such Allotment Letters are not agreements in terms of Section 2(au) of the Act. Those 'Allotment Letters' did not create enforceable rights in the allottees and to that extent 'works contract' never arose, in the present facts. 13. Those are unregistered documents. Such Allotment Letters are not agreements in terms of Section 2(au) of the Act. Those 'Allotment Letters' did not create enforceable rights in the allottees and to that extent 'works contract' never arose, in the present facts. 13. Third, referring to the decision of the Supreme Court in K. Raheja Development Corporation v. State of Karnataka, 2005 NTN (27) 243 (hereinafter referred to as the 'K. Raheja case') and L&T case, it has been forcefully submitted, the facts of those two cases and therefore, the ratio laid down by the Supreme Court is wholly distinguishable and not applicable to the present facts. Elaborating his submissions, learned Senior Counsel for the assessee has submitted, in those cases, there existed a tripartite agreement involving the owner of the land on one hand; the developer or the builder (who had agreed to raise constructions on the land of the owner), as a second party and; allottee/prospective purchaser as a third party. Arising from that fact difference, it has been urged, the owner of the land never attempted to raise constructions over his land, on his own account. In fact that land owner entered into an agreement with the second party, described as the developer. The latter planned and raised constructions - for sale to prospective purchasers. Relying on that distinction of fact, it has been then urged, since in that case, the owner chose to allow another entity to raise constructions over his land, that too under a written agreement, the element of 'works contract' arose, by virtue of the definition of the term 'works contract', as enacted under the Karnataka Sales Tax Act and the Maharashtra VAT Act. Both enactments contain the definition of the term 'works contract' as may have been pari materia to the definition of that term given under Section 2(au) of the Act. 14. By way of second limb of the submission thus advanced, it has been urged, unlike Uttar Pradesh, both in the states of Maharashtra and Karnataka, there existed specific enactments regulating the activity of raising constructions of such residential apartments. 14. By way of second limb of the submission thus advanced, it has been urged, unlike Uttar Pradesh, both in the states of Maharashtra and Karnataka, there existed specific enactments regulating the activity of raising constructions of such residential apartments. Thus, in the State of Karnataka, the Karnataka Ownership Flats (Regulation of Promotion of Construction, Sale, Management and Transfer) Act, 1972 (hereinafter referred to as the 'KOFA') and in Maharashtra, the Maharashtra Ownership Flats (Regulation of Promotion of Construction, Sale, Management and Transfer) Act, 1963 together with the rules framed thereunder (hereinafter referred to as the 'MOFA'), were in force. Referring in extenso - to the provisions of those Acts, specifically Sections 4, 5, 6, 7, 9 of KOFA and Sections 4, 4A, 5 of MOFA read with stipulation contained in Rule 4, 5 and the Model Form of agreement prescribed thereunder, and entered into between the promoter and purchaser of an apartment as prescribed under the Rules framed under MOFA, and at the same time, referring to the relevant discussion on the same (contained in the decision of the Supreme Court in L&T case), it has been urged, no such provision or law exists in the State of Uttar Pradesh. 15. Since in the State of Karnataka and Maharashtra by virtue of KOFA and MOFA and the delegated law arising thereunder, the terms of agreement were stringently prescribed by law and further, since it was clearly stipulated thereunder that the builder/developer may not make any variation or deviation contrary to that agreement and also since, in those cases, valuable rights were created in favour of the allottees in presenti, whereunder they were described as 'Prospective Purchasers', an 'agreement' was found to have been formed creating visible and enforceable 'works contract', as defined under the relevant taxation laws - then in force, in the states of Karnataka and Maharashtra. 16. Since no such 'agreement' existed and since no such rights were ever created in the present case and in any case, since no such rights can ever be seen or be inferred to be existing in favour of an allottee of any of the 681 residential flats constructed by the assessee, over his own land (under the scheme 'J.M. Orchid'), no 'works contract' existed, in view of the language of Section 2(au) of the Act. To draw a distinction from the ratio in the decision of the Supreme Court in K. Raheja case and the L&T case, learned Senior Counsel for the assessee has pressed into service another decision of the Supreme Court in CIT v. Sun Engineering Works (P) Ltd., (1992) 4 SCC 363 , specifically paragraph 39 of that decision. It is his submission, in view of the vast difference of the statutory law in the State of U.P. as compared to the statutory law found enforced in the State of Karnataka and Maharashtra, it is not permissible to apply the reasoning given in the decisions of the Supreme Court in K. Raheja case and L&T case, divorced from the material statutory context in which it had arisen. Plainly, since the statutory context considered by the Supreme Court in those cases is not existing in the State of U.P., the decisions of the Supreme Court are inapplicable. To that end, reliance has also been placed on another decision of the Supreme Court in Union of India and another v. Arulmozhi Iniarasu and others, (2011) 7 SCC 397 , specifically paragraph-14. 17. To bolster his submission further, learned Senior Counsel for the assessee has pressed into service yet another decision of the Supreme Court in M/s. Hindustan Shipyard Ltd. v. State of Andhra Pradesh, 2000 UPTC 891. Therein, the issue involved was - whether the contract requiring manufacture and delivery of ships was a contract of simple sale or a 'works contract'. Referring to paragraph-6 of the report, it has been urged, for the purpose of inferring existence of a 'work contract' there is no straight jacket formula or a quick witted test available, that may be infallible. In absence of any standard formula, facts and circumstance of each case would have to be examined. Those may make material difference to the conclusion that may be drawn, even in cases that may first seem to be identical, at the superficial level. 18. In absence of any standard formula, facts and circumstance of each case would have to be examined. Those may make material difference to the conclusion that may be drawn, even in cases that may first seem to be identical, at the superficial level. 18. Then referring to complete absence of any tripartite agreement between the parties and the absence of any law creating visible rights in favour of the allottees/Prospective Purchasers (as had been noted by the Supreme Court in the K. Raheja case and L&T case), it has been urged, no element of 'works contract' exists or has been found proven as may allow 'works contract' tax to be levied on the assessee, with respect to any of the above noted 681 residential apartments, constructed by it. 19. Unlike the facts in K. Raheja case and L&T case under the Allotment Letters issued by the present assessee, there is no clause to transfer any title or right in the land or any part of it in favour of any society. Heavy reliance has been placed on various clauses of the Allotment Letters, in the present case. In that light, reliance has been placed on the decision of the Supreme Court in Suraj Lamp & Industries Pvt. Ltd. v. State of Haryana and another, (2012) 1 SCC 656 . Thus, it has been urged, transfer of immovable property by way of sale can be made only through a deed of conveyance (sale-deed). In its absence, no right, title or interest in an immovable property may ever arise or be created or be transferred. In that case, it was clearly ruled, no transfer would arise on the strength of a power of attorney. Similarly here, the Allotment Letter creates no conveyance in favour of the allottee. The property with respect to which any Allotment Letter may have been issued being an immovable property, rights between the parties to the Allotment Letter could be altered only through a registered sale-deed. During the course of constructions being made by the assessee in the Assessment Year in question, that stage was not reached. No sale-deed came to be executed in the year in question. In absence of any sale-deed and further, in absence of any agreement to sell, the Court may not infer existence of the necessary prior 'agreement', for the purpose of Section 2(au) of the Act. No sale-deed came to be executed in the year in question. In absence of any sale-deed and further, in absence of any agreement to sell, the Court may not infer existence of the necessary prior 'agreement', for the purpose of Section 2(au) of the Act. Once there is complete lack of evidence as to existence of 'agreement' for the purpose of establishing a 'works contract', the transaction being performed by the assessee would remain anything but a 'works contract', for the purpose of levy of tax under the Act. Since the transaction performed by the assessee did not fall within the plain language of the taxation statute, the assessee would remain insulated from any tax that the revenue authority seeks to impose, on such transaction. 20. Then, in the context of the Act and the disputes arising within the State of Uttar Pradesh, it has been urged, the test (as is being invoked by learned Senior Counsel for the assessee), in the present case, has been recognised on many occasions. First, in Assotech Realty Pvt. Ltd., Delhi v. State of U.P. and another, 2007 UPTC 797, a division bench of this Court considered a similar Allotment Letter. It was found, despite issuance of such allotment letter, Assotech Realty Pvt. Ltd. remained the owner of the apartment/flats including all constructions raised thereon, till execution of the sale-deed and its registration in favour of the allottees. That decision though came to be reversed by the Supreme Court in Civil Appeal No/s. 5624-5625 of 2007 arising out of SLP No. 2237-79 of 2007, vide order dated 3.12.2007, the principle of law laid down by the division bench was neither disapproved nor departed from by the Supreme Court. The Civil Appeal was disposed of on consideration that the issue may be thrashed out in statutory proceedings first, with the further observation - the nature of rights conferred on the allottees had to be considered in the regular proceedings of assessment and appeal therefrom. No conclusion may have been reached pre-maturely by the writ Court before that exercise had been made by the statutory authorities. 21. Further, to bolster his submission, learned Senior Counsel for the assessee has also submitted, after the order of the Supreme Court, Assotech Realty Pvt. Ltd., Delhi (supra) was subjected to regular assessment. The matter reached the Tribunal. It allowed the appeal, vide order dated 11.6.2010. 21. Further, to bolster his submission, learned Senior Counsel for the assessee has also submitted, after the order of the Supreme Court, Assotech Realty Pvt. Ltd., Delhi (supra) was subjected to regular assessment. The matter reached the Tribunal. It allowed the appeal, vide order dated 11.6.2010. It was rectified by order 12.7.2010 on some arithmetical/clerical error. The revision filed by the revenue against that order, STR/TTR Defective No. 184 of 2012 (CTT v. M/s. Assotech Realty Pvt. Ltd.) came to be dismissed by a learned single Judge of this Court, vide order dated 20.9.2012. That order has attained finality. Therefore, no different/other view may be taken, in the present proceedings. 22. Then, another division bench decision of this Court in Express Projects Pvt. Ltd. v. State of U.P., 2013 NTN (53) 144 took note of the earlier division bench decision of this Court in Assotech Realty Pvt. Ltd., Delhi (supra) and the order of the Supreme Court in Civil Appeal arising from that decision and, thereafter reiterated the principle laid down by the Supreme Court i.e. individual facts and evidence would have to be examined in each case, by the revenue authorities. Thus, that writ petition was dismissed as withdrawn, with liberty given to that assessee to raise appropriate challenge in statutory proceedings. 23. Similar course is stated to have been adopted by another learned single Judge of this Court in Supertech Ltd. NOIDA v. Commissioner, Commercial Tax, U.P. Lucknow, 2017 NTN (63) 136. There, the matter was remanded, applying the test laid down by the Supreme Court in Assotech Realty Pvt. Ltd., Delhi (supra). Thus, no rule of thumb is available, at this stage, to infer existence of 'works contract' in face of Allotment Letters issued, by a builder. Other material and evidence would have to be examined to reach that conclusion. Since in the present case, other material or evidence exists, the conclusion reached by the assessing authority as confirmed by the Tribunal (that there existed a 'works contract'), without considering the same, is based on no material or evidence. Rather, it is conjectural. Referring to the order of the Tribunal, it has been submitted, the Tribunal has not made any effort to record any finding on that material aspect. Rather, it is conjectural. Referring to the order of the Tribunal, it has been submitted, the Tribunal has not made any effort to record any finding on that material aspect. In light of the above, it has blindly applied the decision of the Supreme Court in K. Raheja case and L&T case without ascertaining the facts of the case, first. 24. While hearing of the present matter was continuing and it got disrupted for roster considerations, the assessee came to file a Supplementary-affidavit, on 22.1.2023, annexing thereto the order dated 4.1.2023 passed by the Commercial Tax Tribunal, Bench-II, NOIDA in Second Appeal No. 124 of 2022 (M/s. J. M. Housing Ltd. v. CTT) for A.Y. 2017-18 (upto 30.6.2017), i.e. in the case of the same assessee. Therein, again, in the context of similar terms of the Allotment Letter, the Tribunal has reasoned that the constructions of residential apartments made by the assessee were not by way of execution of a 'works contract'. As such constructions were not being made on behalf of the allottees. The constructions were found to be raised by the assessee on its own account. 25. On the second question, it has been submitted, it arises in the alternative. In the first place, the value of the goods for the purpose of determining the turnover of 'works contract' or the value of goods appropriated to 'works contract', has to be the value of those goods on the date of such goods being physically incorporated in the 'works contract'. Since the present is a case of construction of residential apartments, the date of appropriation/incorporation would be the date when the goods were physically applied or used in construction, such that they became part of the constructions being raised. On that date, the value of the goods may never be more than the purchase value or the market value of the goods on the date of such appropriation/incorporation. 26. Referring to the books of accounts of the assessee as have been accepted, it has been shown, the goods incorporated in the alleged 'works contract' were valued at Rs. 19,78,16,069/-. Referring to the grounds of appeal as raised before the Tribunal, it has been submitted, the assessee never accepted or admitted addition to be made to that value @ 10%. Referring to the books of accounts of the assessee as have been accepted, it has been shown, the goods incorporated in the alleged 'works contract' were valued at Rs. 19,78,16,069/-. Referring to the grounds of appeal as raised before the Tribunal, it has been submitted, the assessee never accepted or admitted addition to be made to that value @ 10%. If at all, the value of goods alleged to have been incorporated in a 'works contract' should have been taken at the book value and not more. In that context, it has been submitted, the decision of the learned single-Judge of this Court in The Commissioner, Commercial Tax v. S/S Design Arch Infra Pvt. Ltd. does not decide the issue at hand. That issue though had arisen in that revision, it was not pressed by the revenue. Therefore, at present, the Tribunal has completely erred in relying amongst other on that decision, to make an addition of 10% to the value of the goods incorporated in the alleged work contract, executed by the assessee. Since final authoritative decision had never arisen on this issue, it was open to the assessee to raise the issue and the Tribunal ought to have decided the same, independent of its earlier decisions. In that regard, reliance has been placed on yet another decision of the Supreme Court in C.K. Gangadharan and another v. Commissioner of Income Tax, (2008) 304 ITR 61 (SC). 27. Relying on the ratio of C.K. Gangadharan and another (supra), it has been submitted (in the alternative), merely because certain orders of the Tribunal passed in the case of different assessees may not have been challenged, and thus remained untested before this Court, no binding precedent may have arisen for that reason. The assessee retains a perfect right to challenge the correctness of the findings of the Tribunal as to 10% addition made to the book value of the goods claimed to have been incorporated in the execution of the alleged 'works contract'. 28. On the other hand, learned Standing Counsel would submit, much water has flown since the earlier decision of the division bench of this Court in Assotech Realty Pvt. Ltd. (supra). 28. On the other hand, learned Standing Counsel would submit, much water has flown since the earlier decision of the division bench of this Court in Assotech Realty Pvt. Ltd. (supra). Any doubt that may have existed and any issue that may have been perceived to be open at that stage, no longer survives for consideration in view of the subsequent authoritative pronouncement of the Supreme Court in L&T case, that decision being a decision of a larger bench/three-judge bench of the Supreme Court. Upon answer given to the reference made (specifically as to correctness of the view expressed in the K. Raheja case), the controversy cannot be looked at except through the prism of clarity offered by the ratio laid down by the Supreme Court in L&T case. 29. Referring to that decision, learned Standing Counsel would vehemently urge, in the context of 'works contract', in construction industry, largely, there are two situations. First, transactions arise where a land owner may make constructions over his own land, from his own funds, without any allotment and without creating any right or interest in any third party. There, the land owner seeks and is granted sanction by the relevant development or other authority, to raise the constructions according to the plan submitted and approved. The constructions are raised by such land owners from their own funds, without any intent or agreement or 'Allotment Letter' or offer to sell (any under-construction building or part thereof), before the constructions are completed and made ready for use. Second, is a type of transaction where third party rights are created and or intervene, whether by way of a bipartite agreement or tripartite agreement or any other agreement involving one or more than one other party/parties, besides the land owner. In those situations, Allotment Letter is issued as a consequence of another agreement often described as a Builder Agreement or a Development Agreement etc; wherein (i) a third party may agree to develop the land owned by the land owner or (ii) the land owner may himself enter into a bipartite agreement with the persons who may eventually come to occupy the constructions being raised. In either case, upon issuance of Allotment Letter, a 'work contract' would arise no sooner than its issuance, against consideration. In that case whether the eventual owner of the accommodation/building/part of building etc. In either case, upon issuance of Allotment Letter, a 'work contract' would arise no sooner than its issuance, against consideration. In that case whether the eventual owner of the accommodation/building/part of building etc. is described as an allottee or an applicant or a prospective purchaser, would remain a matter of nomenclature only. It would not affect the nature of rights created. Once the right to occupy the constructions arises in favour of such other persons (either under a bipartite agreement entered into directly with the land owner or a tripartite agreement between the allotment on one hand, with the land owner and developer on the other, or under a similar joint-venture agreement etc.), a right to have the construction raised - of agreed specification and in agreed time schedule, against an agreed payment schedule, would itself lead to existence of a 'works contract'. 30. Referring to the Allotment Letter, he would submit, it creates rights of the nature as may not have arisen except under 'works contract'. Once that 'agreement' had arisen and the constructions were raised in accordance thereto, the 'agreement' necessary to bring to life a 'works contract', is clearly visible and identifiable. It is neither vague or uncertain nor unspecified. Its terms are well defined and written. To those terms, the assessee has no dispute. In fact it is a self admitted document. Its copy has also been annexed to the supplementary-affidavit brought on record by the assessee. 31. Seen in that context and in light of the ratio in L&T case, ownership of land, its lack of transfer under the terms of the Allotment Letter, possibility of deviation in constructions being neither prohibited nor specially regulated in the State of U.P. (as was done in the States of Karnataka and Maharashtra under KOFA and MOFA), would remain issues, extraneous to the dispute at hand. Once the 'agreement' giving rise to the 'works contract' is identified and it does exist, the lack of regulatory law and the lack of transfer of land would make no difference. What the revenue seeks to tax is not the sale of land (which in any case it can never do), but the value of the goods incorporated in the execution of such 'works contract'. What the revenue seeks to tax is not the sale of land (which in any case it can never do), but the value of the goods incorporated in the execution of such 'works contract'. It is also not relevant whether the goods were incorporated strictly in accordance with the terms of the Allotment Letter i.e. without deviation in the constructions raised or together with certain deviations noted in the context of building laws. Insofar as the allottee would remain entitled to the constructions raised by virtue of the compliance of the terms of the Allotment Letter i.e. payments made as and when due, the same would include the transfer of goods incorporated in the 'works contract'. Its value would expose the assessee to the levy of the tax under the Act. 32. The only situation where the 'works contract' tax liability would cease to exist would be as contemplated in the L&T case - i.e., where the allotment made is cancelled by either party, for whatever reason. In that event, subsequent to the cancellation, the constructions made would stand on the same footing as if raised by the owner or the builder, as the case may be, on his/their own account. However, up to the stage of cancellation, the constructions raised would remain liable to suffer the levy of 'works contract' tax. 33. Third, it has been submitted, the stipulations in the agreement between builder and the allottee owner/and or builder and the allottee would not have the effect of negating or rebutting the evidence of existence of 'works contract' as had otherwise arisen, primarily on the strength of the Allotment Letter. Thus, the requirement for the levy of tax on execution of 'works contract' was satisfied in terms of the definition of 'works contract' under Section 2(au) of the Act. Once that test is seen satisfied, the inquiry must end the consequence of law, i.e. the levy of tax would arise by the necessary operation of law, thereupon. It would not remain subservient or dependent on the further conduct of the parties to the transaction namely, the owner and or the builder on one hand and the allottee on the other. Only exception thereto is the event of cancellation of allotment. It would not remain subservient or dependent on the further conduct of the parties to the transaction namely, the owner and or the builder on one hand and the allottee on the other. Only exception thereto is the event of cancellation of allotment. There, as noted above, the 'works contract' would dissolve and the constructions raised thereafter acquire the status of own constructions of the owner or the builder, as the case may be, as may be raised/continued after cancellation of the allotment. 34. There is no canon of law available as may allow the private law between the parties to either violate or over reach the statutory law. Since the fiscal statute is seen to tax 'works contract', as defined, it never remained open to the assessee to incorporate artificial clauses in the Allotment Letter as may allow it to claim that exception to the statutorily unexceptional rule - to tax 'works contract'. 35. In any case the law with respect to transfer of immovable property and the mandatory requirements prescribed thereunder for registration of a deed have no bearing on the levy of tax on works contract. That exists in a different sphere of law governing the manner in which a deed evidencing transfer of immovable property may be created and registered. Section 2(au) deliberately does not employ anything as may warrant any inference to be drawn that unless there pre-exists a valid and registered agreement to sell or a registered sale-deed with respect to the under-construction building, no 'works contract' may arise. In fact that contract precedes a valid agreement to sell or a sale-deed, as the case may be. 36. Then referring to the provision of KOFA and MOFA and the decisions of the Supreme Court in K. Raheja case (supra) and L&T case (supra), it has been stated, the provisions of those statutory laws do not govern the ratio laid down by the Supreme Court. Since those provisions were also cited in those cases, discussion had emerged in the decisions of the Supreme Court, noted above. However, the only purpose of those enactments was to protect the interest of a person/s who may have entered into an agreement with builders and or land owners, for allotment of portion of constructions being raised thereon. Such protections were granted with respect to quality, specifications of constructions etc. 37. However, the only purpose of those enactments was to protect the interest of a person/s who may have entered into an agreement with builders and or land owners, for allotment of portion of constructions being raised thereon. Such protections were granted with respect to quality, specifications of constructions etc. 37. Having heard learned counsel for the parties and having perused the record, before considering the submissions thus advanced by learned counsel for the parties, it would be useful to extract certain provisions of the Act. Relevant to the issues involved in the present case, provisions of Section 2(ac) being definition of 'sale', 2(ad) being definition of 'sale price' and 2(au) being definition of 'works contract' read as below: ''2(ac) ''sale'' with its grammatical variations and cognate expressions, means any transfer of property in goods (otherwise than by way of a mortgage, hypothecation, charge or pledge) by one person to another, for cash or for deferred payment or for any other valuable consideration and includes, (i) a transfer, otherwise than in pursuance of a contract of property in any goods for cash, deferred payment or other valuable consideration; (ii) a transfer of property in goods (whether as goods or in some other form) involved in the execution of a works contract; (iii) the delivery of goods on hire purchase or any other system of payment by installments; (iv) a 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; (v) the supply of goods by an association or body of persons (whether incorporated or not) to a member thereof for cash, deferred payment or other valuable consideration; (vi) the supply, by way of or as part of any service or in any other manner whatsoever of goods, being food or any other article for human consumption or any drink (whether or not intoxicating) where such supply or service is for cash, deferred payment or other valuable consideration, and such delivery, transfer or supply of any goods under subclause (i) to sub-clause (vi) above shall be deemed to be sale of those goods by the person making the delivery, transfer or supply and a purchase of those goods by the person to whom such delivery, transfer or supply is made. (ad) ''sale price'' means the amount payable to a dealer as consideration for the sale of any goods, less any sum allowed as cash discount according to the practice normally prevailing in the trade, but inclusive of any sum charged for anything done by the dealer in respect of goods at the time of or before the delivery of such goods, other than cost of outward freight or delivery or cost of installation in cases where such cost is separately charged; EXPLANATION - (i) In a case in which any amount of any duty payable by a dealer is deferred for a period or in a case in which point of payment of any duty is shifted, amount, of such duty shall be deemed part of the sale price; (ii) The price of packing material in which any goods are packed shall be deemed part of sale price of goods sold; (iii) Sale price of goods in relation to transfer of property in goods (whether as goods or in some other form) involved in the execution of a works contract, shall be determined after deducting the aggregate of actual amount incurred towards labour and services, amount of profit relating to supply of labour and services and such other amounts as may be prescribed from the total amount received or receivable in respect of such works contract; [See Rule 9] (iv) In respect of transfer of right to use goods, any goods for any purpose (whether or not for a specified period) sale price means the valuable consideration received or receivable in respect of such transfer of right to use goods but does not include any sum payable as a penalty or as compensation or damages for breach of contract; (v) Tax charged or chargeable shall not form the part of the sale price; (vi) Cash or trade discount at the time of sale as evident from the invoice shall be excluded from the sale price but any ex post facto grant of discounts or incentives or rebates or rewards and the like shall not be excluded from the sale price; (ae). ....... ...... (au) ''works contract'' includes any 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.'' 38. ....... ...... (au) ''works contract'' includes any 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.'' 38. Under Section 3(vi) of the Act, the turnover of sale of goods involved in the execution of 'works contract' is to be determined in accordance with the prescribed Rules namely, Rule 9 of the Rules framed under the Act. Rule 9 of the Rules reads as under: ''9. Period for conveyance of title of promoter to organisation of flat purchasers.- If no period for conveying the title of the promoter to the organisation of the flat purchasers is agreed upon, the promoter shall (subject to his right to dispose of the remaining flats, if any) execute the conveyance within four months from the date on which the Co-operative society or the company is registered or, as the case may be. the association of the flat takers is duly constituted. [When a promoter has submitted his property to the provisions of the Maharashtra Apartment Ownership Act, 1970 by executing and registering a Declaration as required by Section 2 of the Act, and no period for conveying the title of the promoter in respect of an apartment to each apartment taker is agreed upon, the promoter shall execute the conveyance or deed of apartment in favour of each apartment taker within four months from the date. the apartment taker has entered into possession of his apartment. [The promoter shall file with the Competent Authority a copy of the conveyance executed by him under sub-section (1) of Section 11 within a period of two months from the date of its execution.]'' 39. Then, it cannot be denied, the facts of the present case may be similar to those found by a division bench of this Court in Assotech Realty Pvt. Ltd. (supra). There also, the assessee/petitioner before the Court was the owner of the (free-hold) land. It proposed to raise constructions over that land transferred to it by the Ghaziabad Development Authority. It advertised those constructions thereby proposing to sell apartments to be constructed. Against expression of interest shown by various individuals etc., against that representation made, it had issued Allotment Letters to them. It proposed to raise constructions over that land transferred to it by the Ghaziabad Development Authority. It advertised those constructions thereby proposing to sell apartments to be constructed. Against expression of interest shown by various individuals etc., against that representation made, it had issued Allotment Letters to them. Amongst others, under the terms and conditions of allotment, it was made subject to a sale-deed being executed between the parties. Provision for common area/facilities etc. were also made with the stipulation that the same would remain the property of the said petitioner/assessee and that allottees would not acquire any further right till the execution of individual registered sale-deed in their favour. Also, it may be noted, the challenge itself had arisen in the context of U.P. Trade Tax Act, 1948. At the same time, the definition of 'works contract' under Section 2(au) of the Act is found to be pari materia to the definition of that term under Section 2(m) of U.P. Trade Tax Act, 1948. 40. In that context, the division bench held, the meaning of the word 'agreement' as defined under the 'works contract' implied either a written or implied contract. Then, it may be noted, Clauses 3, 5, 6, 12, 13, 14, 15 and 17 of the Allotment Letter issued by the present assessee read as under: ''3. NATURE & TITLE OF ALLOTMENT 3.1 The aforesaid group housing project is raised on the lease hold plot of 20,000 Sq. Mirs, Allotted by the NOIDA Authority registered Lease Deed dated 30.7.2010 and the Allottee(s) shall remain bound by all the terms and conditions contained in the said Lease Deed, executed between the Noida Authority and the Company. The Lease Deed is registered with the Sub Registrar-III, Noida as Registered Document No. 3193, Book No. 1, Zild No 2017, on pages 127 to 168, dated 30.7.2010. 3.2 That as per the terms and conditions of the main lease, executed by Noida Authority in favour of the Company, the allotment of the flat shall be subject to the execution of Sub-Lease Deed between the Noida Authority, Company and the Allottee(s), in respect of the land but super structure shall be on outright sale basis. The document/title of transfer deed shall be made and registered accordingly. The document/title of transfer deed shall be made and registered accordingly. 3.3 The Lease Deed executed by Noida Authority in favour of the Company is for a period of 90 years from the date of its execution, accordingly the Sub-Lease Deed to be executed in favour of the Allottee(s), expiring correspondingly with the expiry date of the Lease Deed in favour of the Company by the Noida Authority. 3.4 The Sub-Lease Deed/Conveyance deed shall be executed, only after the Allottee(s) has made full and final payments, Including all other additional charges which are due and payable to the Company. Till the execution of the Sub-Lease Deed/Conveyance Deed and handing over the possession of the flat, the ownership of the fiat shall remain vested with the Company. 5. CHANGE IN SPECIFICATION That the Company may provide additional/better specifications other than those mentioned in the specifications sheet or G brochures or may increase/decrease the area ofthe flat of the Allottee(s) as deemed necessary or due to any supervening circumstances or due to any technical reason/s to facilitate the larger interest of the other Allottee(s), subject to adjustment of the price proportionality at the original rate. 6. PROJECT LOAN 6.1 The Allottee agrees that until a Sub-Lease Deed is executed and registered, the company shall continue to be the owner of the flat and also the construction thereon and this allotment shall not give to the Allottee(s) any right or title or interest therein even though all the payments have been received by the Company. It is further clarified that the Company is not constructing any flat as a contractor of the allottee(s) but on the other hand Company is constructing the complex as its own and the sale shall be deemed to have take place only, after the actual completion construction/finishing/handling over of the flat and the execution of the Sub-Lease Deed. The company shall have the first lien and charge on the flat for all its dues that may/become due and payable by the Allottee(s) to the Company. The company shall have the first lien and charge on the flat for all its dues that may/become due and payable by the Allottee(s) to the Company. 6.2 It is hereby agreed, understood and declared by and between the parties that the Company may take construction finance demand loan for the construction of the above Complex from the Banks/Financial Institutions after mortgaging the land flat of the said complex, however the sale-deed in respect of the said flat in favour of Allotteets) will be executed and registered free from all encumbrances at the time of registration of the same, relating to flat qua Builder. 6.3 No request for any changes whatsoever in the flat from the Allottee(s) shall be entertained. 12. TRANSFER OF ALLOTMENT 12.1 The allotment of flat is made in the proposed group housing project 'JM ORCHID' at Plot No, GH-01/C, Sector-78, Noida, District Gautam Budh Nagar, UP and allotment is valid for this project of the company and not liable to be transferred to any other project of the company. 12.2 The transfer of allotment is not permissible, however it may be permitted at the discretion of the company in the exceptional cases only, subject to payment of administrative charges @ __________plus Government taxes of super area of flat. 13. PAYMENT PLAN 13.1 The Allottee(s) shall be required to make the payment as per the payment plan opted by him/her which is attached with Annexure (a). 13.2 That the costs relating to stamp duty and other incidental charges as applicable for registration of Sub-Lease Deed Conveyance Deed shall be paid separately by the Allottee(s) to the company before possession as and when demanded by the company. 14. CANCELLATION OF ALLOTMENT & FORFEITURE OF MONEY That failure of the Allottee(s) to adhere to the payment plan will render this allotment cancelled and the company shall be free to re-allot the flat to any other buyer. That on termination of the allotment or cancellation of the same by the Allottee(s), the amount so far deposited by the Allottee(s) shall be refunded without any interest thereon after deducting the 10% of total cost of flat including other charges which is liable to be forfeited. 15. DELAYED PAYMENT 15.1 Allottee(s) shall ensure that all payments are made on or before the due date(s) fixed in the payment schedule, to avoid cancellation of allotment. 15. DELAYED PAYMENT 15.1 Allottee(s) shall ensure that all payments are made on or before the due date(s) fixed in the payment schedule, to avoid cancellation of allotment. 15.2 Where payments are delayed, the Company shall at its absolute discretion accept the delayed payments, on being shown sufficient cause by the Allottee(s) for such delay. The Allottee(s) shall be liable to pay interest 18% per annum on delayed payment, but no late payment shall be accepted if the default continues for a consecutive period of three months in case of Down Payment Plan and for three consecutive installments in case of other payment plans. 15.3 Delayed payments Allottee(s) will first be adjusted towards the interest due and thereafter the balance will be adjusted towards the principal amount. 17. ASSURANCE That the Company M/s. J.M. Housing Ltd. hereby assures the allottee(s) that all the payments to Noida Authority will be solely paid and cleared by the Company before handing over the possession of the Flat or before the execution of Sub-lease Deed in favour of the Allottee(s).'' 41. Similar clauses were found existing (by the division bench), in the case of Assotech Realty Pvt. Ltd. (supra). In that context, the division bench observed as below: ''21. From the reading of the aforesaid clauses, we find that the specification, plan, price payment, schedule and lay out plan as has been proposed by the petitioner is to be agreed by the parties. Further, the petitioner has been empowered to mortgage the land and apartments of the said complex to raise construction/finance/demand loan for the construction of the complex, from the Banks/Financial Institutions. The only stipulation is that the sale-deed would be executed and registered free from all encumbrances. The allottees are to strictly adhere to payment schedule failing which liability for payment of interest accrues. The allottees do not get any right in the apartment until a sale-deed is executed and registered and the petitioner continues to remain the owner of the apartment as also the construction thereon. The allotment letters does not give any right, title and interest to the allottees even though full payment has been received by the petitioner. The petitioner is empowered to make variations/modifications in the plan, design and specification and possession is to be handed only upon payment of the entire amount. The allotment letters does not give any right, title and interest to the allottees even though full payment has been received by the petitioner. The petitioner is empowered to make variations/modifications in the plan, design and specification and possession is to be handed only upon payment of the entire amount. Taking into consideration, the terms and conditions of the letter of allotment, which have been reproduced above, we are of the considered opinion that the petitioner continues to remain the owner of the apartments/flats including all constructions till such time the sale-deed is executed and registered in favour of the prospective allottees/purchasers. The payment of instalments by the prospective allottees/purchasers do not transfer any right, title or interest in the construction undertaken by the petitioner. Thus, the constructions undertaken by the petitioner cannot be said to have been undertaken by it for and on behalf of the prospective allottees/purchasers.'' 42. There upon, after a detailed consideration of the decision of the Supreme Court in K. Raheja case, the division bench finally concluded as below : ''26. In the aforesaid case, the agreement provided that M/s. K. Raheja Development Corporation, as developer on its own behalf and as developer of such person, would construct the flats as a unit, ultimately to belong to such person. In the aforesaid case K. Raheja Development Corporation were constructing the unit for and on behalf of the person who had agreed to purchase the flats. In the present case, we find that the petitioner is constructing the flats/apartments not for and on behalf of the prospective allottees but otherwise. The payment schedule would not alter the transaction. The right, title and interest in the construction continue to remain with the petitioner. It cannot be said that the constructions were undertaken for and on behalf of the prospective allottees and, therefore, the constructions in question undertaken by the petitioner would not fall under Clause (m) of Section 2 read with Section 3-F of the Act and are outside the purview of the provisions of the Act. In other words, they cannot be subjected to tax under the Act and the action in imposing tax on such constructions treating them to be works contract, is wholly without jurisdiction. In other words, they cannot be subjected to tax under the Act and the action in imposing tax on such constructions treating them to be works contract, is wholly without jurisdiction. We are, therefore, of the considered opinion that the impugned orders dated 24th March, 2006 and 29th May, 2006, passed by the Assistant Commissioner, Trade Tax, Sector I, Noida, respondent No. 2, insofar as they relate to imposition of tax on construction of apartments/houses/flats and other construction in question, are wholly jurisdiction and they cannot be sustained and are hereby set aside.'' 43. It is equally true, the above decision of the division bench was set aside by the Supreme Court in Special Leave to Appeal (Civil).../2007 CC 11480-11481 (State of U.P. and another v. M/s. Assotech Reality Pvt. Ltd.). At the same time, the Supreme Court did not overrule the reasoning of the division bench, on merits. It set aside the order of the division bench, leaving it open to the parties to contest the dispute on merits, through statutory forum of appeal. The Supreme Court only observed as below: ''What was the nature of the right conferred on the allottees of flat, what was the consideration for payment of installments, whether construction by the respondent was on its own account or for the allottees etc. These questions were not capable of being decided in a writ petition.'' 44. It is light of such observation, the matter reached the appeal forum where it also does appear, the appeal filed by the Assotech Realty Pvt. Ltd. (supra) came to be allowed by Tribunal. That order was not interfered with by this Court in exercise of revision jurisdiction, under Section 11 of the U.P. Trade Tax Act. Yet, no other or further conclusion may be reached from a plain reading of the order dated 29.2.2012 passed in Sales/Trade Tax Revision Defective No. 184 of 2012. That order reads as below: ''Cause shown is sufficient; delay in filing the revision is condoned. This revision has been filed by the State for the assessment year 2004-05 against the order of the Tribunal dated 14.12.2010. That order reads as below: ''Cause shown is sufficient; delay in filing the revision is condoned. This revision has been filed by the State for the assessment year 2004-05 against the order of the Tribunal dated 14.12.2010. The question of law referred to is hereunder : ''Whether on the facts and in the circumstances of the case, the Tribunal legally justified in setting aside the tax liability created by the assessing officer on the construction and sale of flats to be prospective owners treating the transaction as works contract ?'' The Tribunal has recorded findings that the assessee had made the flats on his own behalf and has even paid stamp duty on his own and therefore, this case is not covered under Section 3F of the Act. In view of the findings of fact recorded by the Tribunal, no question of law arises. This revision has no merit, it is dismissed. Sri Suyash Agrawal has appeared on behalf of the assessee.'' 45. Neither the issue being presently raised and seriously contested (in these proceedings), was discussed in that decision nor there arose any finding as may bind this Court in the present case. The learned single Judge while dealing with that revision merely observed that the Tribunal had recorded a finding that the assessee (in that case) had constructed the flats on its own behalf and that it had paid stamp duty on its own account. That being the reasoning of the Tribunal, the Court then merely observed - no question of law arose in such facts. 46. Considering the question of law that had been raised by the revenue in that revision, the reasoning offered by the Court to dismiss it, do not co-relate. It may never be said with any conviction that the Court had chosen to answer the question raised before it. It may be noted, this Court does not have appeal jurisdiction over the orders of the Tribunal. It only exercises revision jurisdiction. Thereby, it only seeks to answer questions of law that may be raised before it arising from any adjudication on facts made by the Tribunal - the last fact finding authority, both under U.P. Trade Tax Act and the Act. 47. It only exercises revision jurisdiction. Thereby, it only seeks to answer questions of law that may be raised before it arising from any adjudication on facts made by the Tribunal - the last fact finding authority, both under U.P. Trade Tax Act and the Act. 47. For a question of law to be answered decisively, it must be both, seen to exist on the surface, and its answer must be contained within the discussion and reasoning given by the Court - while answering that question, raised before it. By merely stating - no question of law arose in view of the findings recorded by the Tribunal that constructions had been raised on its own account, the Court never intended and it may never be inferred that it attempted to answer the question raised before it. In fact, such orders are orders of refusal to answer a question of law raised before the Court. Those are passed wherever and whenever the Court finds that the question of law may have been raised before it, does not or exist or arise. Classically, that situation arises when findings recorded by the Tribunal are found to be findings of fact concluded on the strength of material and evidence placed before it. 48. Looked in that light, the order of the learned single-judge dated 20.9.2012 appears to be no different. Whether, the observation of the learned single-judge that the question of law does not arise in view findings recorded by the Tribunal is treated to be correct or not, is an academic issue. Insofar as it can never be said that this Court chose to answer the question raised on strength of its own reasoning and insofar as it cannot be seen that this Court had ever reasoned that no 'works contract' arose on the strength of the Allotment Letter etc., no reliance may be placed on that decision. The decision is what it says and nothing more. It is a decision on facts only. It may bind the parties to that dispute only, without creating any binding precedent. 49. The other decision of the division bench in the case of Express Projects Pvt. Ltd. (supra) and the still other decision of the learned single Judge in Supertech Ltd. NOIDA (supra), are clearer in effect. It is a decision on facts only. It may bind the parties to that dispute only, without creating any binding precedent. 49. The other decision of the division bench in the case of Express Projects Pvt. Ltd. (supra) and the still other decision of the learned single Judge in Supertech Ltd. NOIDA (supra), are clearer in effect. They only seek to enforce on the revenue authorities and the appeal authorities - the ratio of the decision of the Supreme Court in K. Raheja case and L&T case. Both in case of Express Projects Pvt. Ltd. (supra) and Supertech Ltd. NOIDA (supra), the Court remitted the matter to the statutory authorities, leaving it open to them to consider the individual contracts and facts of those cases, in the light of the decision of the Supreme Court in the case of K. Raheja case and L&T case. Therefore, it may never be accepted on the strength of such decisions that any binding adjudication had been made by this Court -whether similar contracts did or did not give rise to a 'works contract'. All that the Court adjudicated was, the matter required consideration by the statutory authorities as to the true intent of the parties and its consequences qua the existence or otherwise of a 'works contract'. 50. Before we may proceed to consider the decisions of the Supreme Court in K. Raheja case and L&T case, it would be relevant to take notice of the language of Section 2(au) of the Act. In defining the term 'works contract', the legislature has chosen to include therein 'any agreement' to carry out for cash etc. - 'building construction' of 'any movable or immovable property'. In the present facts, there is no dispute that 'cash' or 'valuable consideration' was passed by the allottees to the assessee - for building or construction of an 'immovable property'. Construction for the purposes of sale of residential flats would undoubtedly fulfill those conditions. What therefore is critical to the answer to the dispute brought before this Court is - whether the Allotment Letter admittedly issued by the assessee constitutes an 'agreement' for the purposes of Section 2(au) of the Act. 51. Interestingly, the word 'agreement' has not been defined under the Act. What therefore is critical to the answer to the dispute brought before this Court is - whether the Allotment Letter admittedly issued by the assessee constitutes an 'agreement' for the purposes of Section 2(au) of the Act. 51. Interestingly, the word 'agreement' has not been defined under the Act. However, it having been used by the legislature in the context of a 'works contract', and in absence of any contrary intention expressed under the Act and in absence of any recognised principle, to the contrary, it is wholly contextual and relevant to look at its definition the Indian Contract Act, 1872. Section 2 of the Indian Contract Act reads as below: ''2. Interpretation-clause.-In this Act the following words and expressions are used in the following senses, unless a contrary intention appears from the context:- -In this Act the following words and expressions are used in the following senses, unless a contrary intention appears from the context\:-'' (a) When one person signifies to another his willingness to do or to abstain from doing anything, with a view to obtaining the assent of that other to such act or abstinence, he is said to make a proposal; (b) When the person to whom the proposal is made signifies his assent thereto, the proposal is said to be accepted. A proposal, when accepted, becomes a promise; (c) The person making the proposal is called the ''promisor'', and the person accepting the proposal is called the ''promisee''; (d) When, at the desire of the promisor, the promisee or any other person has done or abstained from doing, or does or abstains from doing, or promises to do or to abstain from doing, something, such act or abstinence or promise is called a consideration for the promise; (e) Every promise and every set of promises, forming the consideration for each other, is an agreement; (f) Promises which form the consideration or part of the consideration for each other, are called reciprocal promises; (g) An agreement not enforceable by law is said to be void; (h) An agreement enforceable by law is a contract; (i) An agreement which is enforceable by law at the option of one or more of the parties thereto, but not at the option of the other or others, is a voidable contract; (j) A contract which ceases to be enforceable by law becomes void when it ceases to be enforceable.'' 52. In the backdrop of that statutory context, it is also not disputed between the parties that the assessee as owner of land, started development, involving construction of 681 residential apartments described as 'J.M. Orchid'. This enterprise is stated to have been commenced by the assessee on its own account. Yet, at the same time, it is undisputed, during the Assessment Year in question, 403 of such under construction residential apartments under construction had already been booked by and had been allotted to third parties. It is the own case of the assessee that such bookings were evidenced by individual Allotment Letters issued, to each of those 403 allottees. 53. As to the terms of the Allotment Letters thus issued, again according to the assessee, those were as per the terms specified in Allotment Letters. A proforma Allotment Letter has been appended to the Supplementary-affidavit brought on record before this Court as well. Its content have already been noted above. Plain reading of the same clearly brings out the intent of the parties being - the assessee offered for sale individual apartments specified and fully described in the Allotment Letter. Details of tower number, flat number, floor number, super area etc. were clearly specified. With respect to payments, Clause 13 is specific. It required the payments to be made as per the plan as may have opted by the individual allottee. 54. Clause 14 of the Allotment Letter further stipulates, failure to adhere to payment plan may expose the allottee to cancellation of the allotment. Also, clause 15 provided for payment of interest in the event of default in payment of due installment under the relevant payment plan. Then, Clause 12 contemplated transfer of allotment at the instance of the allottee upon fulfillment of certain conditions. Also, under Clause 17, the assessee assured the allottees, it would make all due payments to the NOIDA before handing over the possession of the allotted flat and before execution of the sub-lease deed, in favour of the allottee. Various other clauses were also made integral part of the Allotment Letter. Though detailed reference to the same may not be made here, at the same time, it be may be briefly noted, there exist specific clauses with respect to car parking facility, recreation facilities and center, period of possession, payment of service tax, common areas, etc. Various other clauses were also made integral part of the Allotment Letter. Though detailed reference to the same may not be made here, at the same time, it be may be briefly noted, there exist specific clauses with respect to car parking facility, recreation facilities and center, period of possession, payment of service tax, common areas, etc. Read co-jointly, they do bring out existence of mutual set of promises made, by the assessee and the allottees, creating corresponding liabilities and rights. All such promises, liabilities and rights arise against due consideration. Consequences of non-payment of consideration are also provided by way of cancellation of the Allotment Letter itself. Therefore, the allotment letter is clearly a document that may be described as an 'agreement' under the Contract Act. What therefore survives for consideration is, whether the linkage between such 'agreement' and the construction raised by the assessee exists as may further qualify the 'agreement' to be a 'works contract', within the meaning of that term of Section 2(au) of the Act. In the absence of denial, rather, in face of unexcepted admission as to execution of 'Allotment Letter' and its continuance, the fact that the same was not registered etc., would remain extraneous, to the dispute at hand. 55. Though the Court may have ventured into a de novo exercise to evaluate that issue, at the same time, in view of the pronouncements of the Supreme Court in K. Raheja case and L&T case, that exercise is neither desirable nor required. In K. Raheja case, a two-judge bench of the Supreme Court was confronted with the issue whether the appellants before that Court were 'dealers' within the meaning of the Sales Tax Act and were therefore liable to pay turnover tax under that Act. The facts of the case as were noted in paragraph No. 2 of the decision were - the appellant K. Raheja was carrying on business of real estate development. It entered into development agreements with different owners of land. Upon sanction of the plans, residential and commercial constructions were raised on such plots of land. In that context, agreements of sale were entered into between those parties contemplating handing over to the purchasers, the duly constructed accommodations with undivided interest in land, also. 56. It entered into development agreements with different owners of land. Upon sanction of the plans, residential and commercial constructions were raised on such plots of land. In that context, agreements of sale were entered into between those parties contemplating handing over to the purchasers, the duly constructed accommodations with undivided interest in land, also. 56. In such facts, it was noted in that decision, the owner of the land would transfer the ownership of land to the societies formed under KOFA. To that extent, there clearly existed a difference in the facts of that case and the present case to the extent. Here, the assessee has been found raising construction on land leased to it. Also, even on completion of the constructions, only a sub-lease is contemplated to be executed, by the assessee in favour of the allottee and not any society. However, learned Senior Counsel appearing for the assessee may not be entirely right in his contention that the present Allotment Letter does not contain any clause for transfer of lease hold right in the land. Since the land in question has been leased out to the assessee by NOIDA for a period of 90 years, the Allotment Letter [(specifically through Clause 3(2)], speaks of execution of sub-lease deed between NOIDA authority and the assessee and the allottee, in respect of the interest in land. It is only the super structure constructed over such land i.e., the residential flats that are proposed to be sold, on outright sale basis. 57. Keeping those facts in mind and the further undisputed fact that provisions of Section 2(1)(v-i) of the Karnataka Sales Taxation Act was pari materia to the definition of 'works contract' under Section 2(au) of the Act, it is relevant, the Supreme Court also made the following observation : ''We have heard the parties, perused the various documents and considered the cases cited at the bar. As has been rightly submitted by Mr. Hegde the definition of the term 'works contract' in the said Act is an inclusive definition. It does not include merely a works contract as normally understood. It is a wide definition which includes ''any agreement'' for carrying out building or construction activity for cash, deferred payment or other valuable consideration. The definition does not make a distinction based on who carries on the construction activity. It does not include merely a works contract as normally understood. It is a wide definition which includes ''any agreement'' for carrying out building or construction activity for cash, deferred payment or other valuable consideration. The definition does not make a distinction based on who carries on the construction activity. Thus even an owner of the property may also be said to be carrying on a works contract if he enters into an agreement to construct for cash, deferred payment or other valuable consideration. We, therefore, do not need to go into the question whether the Appellants are owners as even if the Appellants are owners to the extent that they have entered into Agreements to carry out construction activity on behalf of somebody else for cash, deferred payment or other valuable consideration, they would be carrying out a works contract and would become liable to pay turnover tax on the transfer of property in the goods involved in such works contract. Further under the said Act there is no distinction between construction of residential flats or commercial units. Thus, a works contract, within the meaning of the term in the said Act, can also be for construction of commercial units. For the purposes of considering whether in agreement amounts to a works contract or not, the provisions of the Karnataka Ownership Flats (Regulation of Promotion of Construction, Sales, Management and Transfer) Act, 1974 I will have no relevance.'' 58. The above reasoning of the Supreme Court assumes primary importance for the purposes of adjudication in the present case, inasmuch as the Supreme Court negated the submissions arising from the ownership in the land and its transfer. It clearly reasoned - it was not required to go into the question, whether the assessee K. Raheja was the owner of the land. To the extent, K. Raheja may have entered into an agreement to carry out construction activity for others, it would be carrying out a 'works contract'. It would therefore be exposed to liability to tax thereon. Then, in unequivocal terms, the Supreme Court itself qualified - the provisions of KOFA were not relevant to the issue of construction or of 'works contract'. That observation having been made by the Supreme Court while it was directly dealing with the issue, the submission arising on the strength of KOFA and MOFA is misconceived. Then, in unequivocal terms, the Supreme Court itself qualified - the provisions of KOFA were not relevant to the issue of construction or of 'works contract'. That observation having been made by the Supreme Court while it was directly dealing with the issue, the submission arising on the strength of KOFA and MOFA is misconceived. It is not required to be gone into by the Court, on the interpretation that is to be made to the effect of the Allotment Letter. In view of that reasoning given by the Supreme Court, the lack of any parallel enactment such that KOFA and MOFA in the State of U.P., is plainly extraneous to the issue. 59. Then, in para 20 of that report, it was observed as under: ''Thus the Appellants are undertaking to build as developers for the prospective purchaser. Such construction/development is to be on payment of a price in various instalments set out in the Agreement. As the Appellants are not the owners they claim a ''lien'' on the property. Of course, under clause 7 they have right to terminate the Agreement and to dispose off the unit if a breach is committed by the purchaser. However, merely having such a clause does not mean that the agreement ceases to be a works contract within the meaning of the ferm in the said Act. All that this means is that if there is a termination and that particular unit is not resold but retained by the Appellants,there would be no works contract to that extent. But so long as there is no termination the construction is for and on behalf of purchaser. Therefore, it remains a works contract within the meaning of the term as defined under the said Act. It must be clarified that if the agreement is entered into after the not or unit is already constructed, then there would be no works contract. But so long as the agreement is entered into before the construction is complete it would be a works contract.'' 60. Having looked at the terms of the agreement that are similar to those forming the substance of dispute in the present case, it is seen - here as well, the assessee was raising the constructions of residential accommodation. But so long as the agreement is entered into before the construction is complete it would be a works contract.'' 60. Having looked at the terms of the agreement that are similar to those forming the substance of dispute in the present case, it is seen - here as well, the assessee was raising the constructions of residential accommodation. Though it may have started that construction activity on its own account, at the same time, it invited offers from the public at large and accepted such offers from particular individuals, against conditions agreed in writing. As noted above, on a mutual set of promises extended by the allottees and the assessee, the terms of the Allotment Letter and the 'agreement' giving rise to a 'works contract' arose. Thus, amongst others, it included a payment plan, adherence to which a sine qua non to the continued allotment in favour of that individual allottee. The fact that the assessee had a right to cancel the allotment and the further fact that the title in the constructions being raised and the interest in land would be transferred on a future date (upon execution of proper lease deed and sale-deed), would not deflect the existence of 'works contract' that had arisen, as a direct consequence of the Allotment Letter. 61. The definition of the term 'works contract' is inclusive and not exclusive. Since it includes therein both, a written and implied contracts, such contracts may also be inferred as a consequence of the admitted conduct offered by the parties, wherein assessee offered payment terms to raise constructions and deliver the same for the exclusive benefit, use/and entitlement of the allottee. The original independent act of the assessee to start raising the constructions on its own land from its own fund after obtaining sanction from the development authority would be of little consequence, and in any case fade into inconsequence, as implied 'works contract' was not only permissible, but also arose subsequent to the date of commencement of the constructions. From thereon, the assessee would stand exposed to 'works contract' tax liability, during the subsistence of the Allotment Letter/s. Such 'works contract' could arise subsequent to initiation of construction activity but also, as the Supreme Court observed - may also (after arising), cease upon cancellation of an individual allotment. 62. From thereon, the assessee would stand exposed to 'works contract' tax liability, during the subsistence of the Allotment Letter/s. Such 'works contract' could arise subsequent to initiation of construction activity but also, as the Supreme Court observed - may also (after arising), cease upon cancellation of an individual allotment. 62. Seen in that light, it is not as if a building may be raised either exclusively on own account or under a 'works contract'. It is also not if the initiation of construction on own account or by way of 'works contract' may exclude or determine the taxability of transfer of goods involved in execution of 'works contract', in entirety. It would remain a dynamic concept. The assessing authority would have to examine the issue, year to year, on individual facts obtaining in each Assessment Year. Thus, by way of example, one part of the total development being carried out by the assessee not less than a unit/flat may either be constructed or continued to be constructed on own account of the assessee or by way of 'works contract' on behalf of the allottee, in one year and that situation may completely reverse viz-a-viz the same apartment, in the next year, depending upon existence and or continuance of the Allotment Letter. Only restriction that may arise is - once the apartment is complete and entire value of goods involved therein incorporated in such flat in an Assessment Year, that position may not change, in the next year. This is also clearly spelt out by the Supreme Court in K. Raheja case, itself. 63. The correctness of that decision was doubted by another two judge bench of the Supreme Court. Thus, in L&T case, the matter came to be referred to the three judge bench of the Supreme Court. Again, in that case, the L&T was a developer seeking to raise constructions described as development over the land owned by an individual. There was an arrangement between the L&T and the owner of the land that after the development, 25% of the total space would belong to the owner whereas 75% would belong to the L&T yet, applications were invited from public for allotment of the proposed constructions. There was an arrangement between the L&T and the owner of the land that after the development, 25% of the total space would belong to the owner whereas 75% would belong to the L&T yet, applications were invited from public for allotment of the proposed constructions. Upon Allotment Letters issued and also under an agreement to sell executed with intended purchasers, the constructed apartments were to be handed over to the individual purchasers with undivided interest in the land also. Sale-deeds were thus executed in favour of the allottees by the L&T and the owner of the land. It is in such circumstance and that L&T was subjected to 'works contract' tax. 64. The matter was again thrashed out at great length. The entire gamut of law of 'works contract' was revisited and elaborate discussion arose. In paragraph Nos. 93, 94 and 95 of the report, it has been observed as below: ''93. The question is: Whether taxing sale of goods in an agreement for sale of flat which is to be constructed by the developer/promoter is permissible under the Constitution? When the agreement between the promoter/developer and the flat purchaser is to construct a fat and eventually sell the flat with the fraction of land, it is obvious that such transaction involves the activity of construction inasmuch as it is only when the flat is constructed then it can be conveyed. We, therefore, think that there is no reason why such activity of construction is not covered by the term ''works contract. After all, the term ''works contract is nothing but a contract in which one of the parties in obliged to undertake or to execute works. Such activity of construction has all the characteristics or elements of works contract. The ultimate transaction between the parties may be sale of flat but it cannot be said that the characteristics of works contract are not involved in that transaction. Such activity of construction has all the characteristics or elements of works contract. The ultimate transaction between the parties may be sale of flat but it cannot be said that the characteristics of works contract are not involved in that transaction. When the transaction involves the activity of construction, the factors such as, the flat purchaser has no control over the type and standard of the material to be used in the construction of building or he does not get any right to monitor or supervise the construction activity or he has no say in the designing or lay-out of the building, in our view, are not of much significance and in any case these factors do not detract the contract being works contract insofar as construction part is concerned. 94. For sustaining the levy of tax on the goods deemed to have been sold in execution of a works contract, in our opinion, three conditions must be fulfilled: (i) there must be a works contract, (ii) the goods should have been involved in the execution of a works contract, and (ii) the property in those goods must be transferred to a third party either as goods or in some other form. In a, building contract or any contract to do construction, the above three things are fully met, In a contract to build a Bat there will necessarily be a sale of goods element. Works contracts also include building contracts and therefore without any fear of contradiction it can be stated that building contracts are species of the works contract. 95. Ordinarily in the case of a works contract the property in the goods used in the construction of the building passes to the owner of the land on which the building is constructed when the goods and materials used are incorporated in the building. But there may be contract to the contrary or a statute may provide otherwise. Therefore, it cannot be said to be an absolute proposition in law that the ownership of the goods must pass by way of accretion or exertion to the owner of the immovable property to which they are affixed or upon which the building is built.'' 65. Examination of the above discussion and reasoning given by the Supreme Court reveals, that Supreme Court found no reason why activity of construction would not be covered under the term of 'works contract'. Examination of the above discussion and reasoning given by the Supreme Court reveals, that Supreme Court found no reason why activity of construction would not be covered under the term of 'works contract'. Also, though the ultimate transaction that may take place between the parties would be one of sale of an apartment, it was further reasoned, that may not dilute the existence of the 'works contract' in such a transaction since it involved the activity of construction which was primary to the definition of the 'works contract'. Lack of control (of the allottee), over the type and standard of material used in the construction or because the allottee may have no right to monitor or to supervise the activity, would be of no consequence. 66. Thereafter, the larger bench of the Supreme Court laid down three tests to sustain the levy of tax on goods sold in execution of 'works contract'. Those are existence of 'works contract'; involvement of goods in execution of such 'works contract'; property in such goods must be transferred to third party. In the context of contract, that was in issue, those conditions were found wholly fulfilled at that stage. The Supreme Court also did not find it material to consider - if the existence of a third party-developer, over and above the owner, would be of material consideration. 67. In paragraph 101 of the report, the discussion made by the three judge Bench of the Supreme Court was summarized as below: 101. In light of the above discussion, we may summarise the legal position, as follows: (i) For sustaining the levy of tax on the goods deemed to have been sold in execution of a works contract, three conditions must be fulfilled: (one) there must be a works contract, (two) the goods should have been involved in the execution of a works contract and (three) the property in those goods must be transferred to a third party either as goods or in some other form. (ii) For the purposes of Article 366(29-A)(b), in a building contract or any contract to do construction, if the developer has received or is entitled to receive valuable consideration, the above three things are fully met. It is so because in the performance of a contract for construction of building, the goods (chattels) like cement, concrete, steel, bricks etc. (ii) For the purposes of Article 366(29-A)(b), in a building contract or any contract to do construction, if the developer has received or is entitled to receive valuable consideration, the above three things are fully met. It is so because in the performance of a contract for construction of building, the goods (chattels) like cement, concrete, steel, bricks etc. are intended to be incorporated in the structure and even though they lost their identity as goods but this factor does not prevent them from being goods. (iii) Where a contract comprises of both a works contract and a transfer of immovable property, such contract does not denude it of its character as works contract. The term ''works contract'' in Article 366 (29-A)(b) takes within its fold all genre of works contract and is not restricted to one specie of contract to provide for labour and services alone. Nothing in Article 366(29-A)(b) limits the term ''works contract''. (iv) Building contracts are species of the works contract. (v) A contract may involve both a contract of work and labour and a contract for sale. In such composite contract, the distinction between contract for sale of goods and contract for work (or service) is virtually diminished. (vi) The dominant nature test has no application and the traditional decisions which have held that the substance of the contract must be seen have lost their significance where transactions are of the nature contemplated in Article 366(29-A). Even if the dominant intention of the contract-is-not-to-transfer the property in- goods and rather it is rendering of service or the ultimate transaction is transfer of immovable property, then also it is open to the States to levy sales tax on the materials used in such contract if such contract otherwise has elements of works contract. The enforceability test is also not determinative. (vii) A transfer of property in goods under clause 29-A(b) of Article 366 is deemed to be a sale of the goods involved in the execution of a works contract by the person. making the transfer and the purchase of those goods by the person to whom such transfer is made. (viii) Even in a single and indivisible works contract, by virtue of the legal fiction introduced by Article: 366(29-A)(b), there is a deemed sale of goods which are ir involved in the execution of the works contract. making the transfer and the purchase of those goods by the person to whom such transfer is made. (viii) Even in a single and indivisible works contract, by virtue of the legal fiction introduced by Article: 366(29-A)(b), there is a deemed sale of goods which are ir involved in the execution of the works contract. involved in the execution of a works contract where the contract is goods divisible into one for the sale of goods and the other for supply of labour and services. In other words, the single and indivisible contract, now by Forty-sixth Amendment has been brought on par with a contract containing two separate agreements and States have now power to levy sales tax on the value of the material in the execution of works contract. (ix) The expression ''tax on the sale or purchase of goods'' in Entry 54 in List II of Seventh Schedule when read with the definition clause 29-A of Article 366 includes a tax on the transfer of property in goods whether as goods or in the form other than goods involved in the execution of works contract. (x) Article 366(29-A) (b) serve: to bring transactions where essential ingredients of 'sale' defined in the Sale of Goods Act, 1930 are absent within the ambit of sale or purchase for the purposes of levy of sales tax. In other words, transfer of movable property in a works contract is deemed to be sale even though it may not be sale within the meaning of the Sale of Goods Act. (x) Taxing the sale of goods element in a works contract under Article 366(29-A)(b) read with Entry 54 List II is permissible even after incorporation of goods provided tax is directed to the value of goods and does not purport to tax the transfer of immovable property. The value of the goods which can constitute the measure for the levy of the tax has to be the value of the goods at the time of incorporation of the goods in works even though property passes between the developer and the. flat purchaser after incorporation of goods.'' 68. With respect to K. Raheja case, in paragraph 107 of the report, the Supreme Court summarized the conclusions of the two judge Bench decision of that Court as below: ''107. flat purchaser after incorporation of goods.'' 68. With respect to K. Raheja case, in paragraph 107 of the report, the Supreme Court summarized the conclusions of the two judge Bench decision of that Court as below: ''107. On consideration of the arguments that were put forth parties, the Court in Raheja Development held as under: (i) The definition of the term ''works contract'' in the Act inclusive definition. (ii) It is a wide definition which includes ''any agreement'' for carrying out building or construction activity for cash, deferred payment or other valuable consideration. (iii) The definition of works contract does not make a distinction base on who carries on the construction activity. Even an owner of the property may be said to be carrying on a works contract if he enter into an agreement to construct for cash, deferred payment other valuable consideration. (iv) The developers had under ken to build for the prospective purchaser. (v) Such construction/development was to be on payment of a in various instalments set out in the agreement. (vi) The developers were not the owners. They claimed lien on the property. They had right to terminate the agreement and dispose of the unit if a breach was committed by the purchaser. A clause like this does not mean that the agreement ceases to be works contract. So long as there is no termination, the construction is for and on behalf of the purchaser and it remains a ''works contract''. (vii) If there is a termination and a particular unit is not resold but retained by the developer, there would be no works contract to that extent. (viii) If the agreement is entered into after the flat or unit is already constructed then there would be no works contract. But, so long as the agreement is entered into before the construction is complete it would be works contract.'' 69. The doubts raised by the two judge Bench decision of the Supreme Court while making reference in the L&T case were noted in paragraph 108 of the decision. It reads as below: ''108. The correctness of the view taken in Raheja Development has been doubted in the referral order principally for the reasons: (a) the developer had undertaken the contract to develop the property of the owner. It is not alleged by the department that there is monetary consideration involved in the development agreement. It reads as below: ''108. The correctness of the view taken in Raheja Development has been doubted in the referral order principally for the reasons: (a) the developer had undertaken the contract to develop the property of the owner. It is not alleged by the department that there is monetary consideration involved in the development agreement. If the development agreement is not a works contract, could the department rely upon the second contract which is the tripartite agreement and interpret it to be a works contract; (b) if the ratio in Rahaja Developments is to be accepted then there would be no difference between works contract and a contract sfer d for sale of chattel as a chattel and (c) from the definition of works contract, in the the contractor must have undertaken the work of construction for and on behalf of the flat purchaser for cash, deferred or any other valuable consideration but could it be said that developer was contractor for the prospective flat purchaser.'' 70. Those was answered in paragraph 110 of the report. It is self-apparent and reads as below: ''110. The argument purchaser is entitled to transfer of flat and conveyance of fraction of land only when all installments have been fully paid and that shows that the agreement between the developer and the flat purchaser is the sale of flat and not to appoint the developer as the contractor of the flat purchaser for the purposes of carrying out the construction of the flat for and on behalf of the flat purchaser has no merit. The submission overlooks the typical nature of the development agreement which is followed by a tripartite agreement between the owner of the land, the developer and the flat purchaser. Effectively and de facto it is the developer who constructs the building for the flat purchaser. The developer does so for monetary consideration. The label of payment is not decisive but the factum of the payment is. The construction is done on payment of price as agreed upon between the developer and the flat purchaser. It is not necessary to recapitulate all clauses of the agreement under KOFA or for that matter under MOFA. Raheja Development takes note of relevant clauses of the recitals and the agreement under KCFA. We need not repeat them. The construction is done on payment of price as agreed upon between the developer and the flat purchaser. It is not necessary to recapitulate all clauses of the agreement under KOFA or for that matter under MOFA. Raheja Development takes note of relevant clauses of the recitals and the agreement under KCFA. We need not repeat them. Similarly, Form V of the Maharashtra Ownership Flat Rules contains recital such as, 'as a result of the Development agreement the promoters are entitled and enjoined upon to construct buildings on the said land'. One of the relevant clauses (omitting unnecessary portion) in Form V reads, ''the promoter shall construct the said building/s....in accordance with the plans, designs, specifications .... which have been seen and approved by the flat purchaser with the owner, such variations and modifications as the promoter may consider necessary or as may be required by the concerned local authority/the Government.....provided that the promoter shall have to obtain prior consent in writing to the flat purchaser in respect of variations or modifications which may adversely affect the flat of the purchaser. It is, thus, not correct to say that the work is undertaken by the developer for himself and for the owner and the construction is not carried for and on behalf of the purchaser.'' 71. While dealing with the doubt expressed as to the correctness of the K. Raheja case, the larger bench of the Supreme Court clearly opined that the fact that the transfer of the flat and conveyance of land would arise on a future date, upon all installments being paid and that agreement between the developer and flat purchaser was one for sale of flats, had no merit. The reason to reject the challenge was given by the Supreme Court by observing that the doubt thus expressed clearly overlooked the typical nature of developer agreement. The developer does so for monetary consideration. The liability of payment was also found not decisive, though the factum of payment was found to be so. 72. Here, as well, it is an undeniable truth in the facts found by the Tribunal that the constructions were made by the assessee, though on its own land against Allotment Letter issued to and payments made by 403 allottees. The liability of payment was also found not decisive, though the factum of payment was found to be so. 72. Here, as well, it is an undeniable truth in the facts found by the Tribunal that the constructions were made by the assessee, though on its own land against Allotment Letter issued to and payments made by 403 allottees. It would be appropriate to note here itself that the revenue authorities have taxed the assessee only to the extent of payments were received by it against 403 flats. Only with respect to those allotments/payments received, 'works contract' was found existing and only with respect to those flats, transfer of property involved in the execution of 'works contract' has been assessed. That has been quantified at 59% of the total flats. As noted before, that fact finding is not in dispute. 73. Then, as to the fact of KOFA and MOFA, in the further discussion made in paragraph 110 of L&T case, it has been specifically found, the provisions of KOFA and MOFA were additional facts pleaded in K. Raheja case and L&T case. Insofar as existence of the 'works contract' had been found in those cases, not on the strength of the provisions of KOFA and MOFA and the contracts entered into in accordance with those provisions of law but on an independent reading of the Allotment Letter, the submission being advanced in the present case - that absence of KOFA and MOFA to the present case would make material difference, is found to be wholly misconceived and unacceptable in face of that law laid down by the Supreme Court. 74. Doubts, if any, as to existence and continuance of 'works contract' against Allotment Letters was further clarified in paragraph 115 and 117 of the report. Thus, as noted above, the 'works contract' would arise only upon issuance of Allotment Letter and would continue during its subsistence, qua the value/consideration that the assessee may receive during that period. 75. In view of the fact that the submissions advanced on the strength of KOFA and MOFA are found to be not relevant to the present controversy, the principle invoked by learned Senior Counsel for the assessee, on the strength of the decision of Sun Engineering Works (P) Ltd. (supra) and Arulmozhi Iniarasu (supra) is wholly inapposite. That principle is not available to the present controversy. 76. That principle is not available to the present controversy. 76. As to the principle, every clause of the 'agreement'/Allotment Letter would have to be seen, there can be no quarrel. In fact, it is that true test that has been applied by the Tribunal. This leads the Court to the conclusion that upon cojoint reading of all clauses of the Allotment Letter, it may be safely inferred-the assessee was executing a 'works contract', to the extent it was raising constructions against individual Allotment Letters issued and payments received there against. However, only to the extent and up to the validity or existence of such Allotment Letters, such 'works contract', would exist/continue to exist. 77. Insofar as the decision of L&T case, is subsequent to the decision of the division bench of this Court in Assotech Realty Pvt. Ltd. (supra), it is the decision of the Supreme Court that creates binding effect in law. Even though the merit discussion made by the division bench in Assotech Realty Pvt. Ltd. (supra) may not have been specifically or directly overruled the same is no longer good law, in light of the reasoning and ratio laid down by the Supreme Court in L&T case. Once the 'agreement' arose upon Allotment Letter issued by the assessee, it satisfied the test of a 'works contract', in terms of the law laid down by the Supreme Court. It would be of no avail to rely on the decision of the division bench of this Court or the fact circumstance of dismissal of revision arising from the subsequent order of the Tribunal in Assotech Realty Pvt. Ltd. (supra). That final decision would remain a final adjudication, confined and limited to that case alone. 78. By way of clarification, it may be noted, the other decision of the division bench of this Court in Express Projects Pvt. Ltd. (supra) and the decision of the learned single Judge in Supertech Ltd. NOIDA (supra) did not lay down any law. By those decisions, the matters were only remitted to the statutory authorities, to decide those matters afresh. 79. Coming to the issue of addition of profit to the book value of the goods involved in the execution of the 'works contract', it may be noted, the assessing authority had made an addition of 21%. While challenging the same, the assessee raised specific grounds of appeal. 79. Coming to the issue of addition of profit to the book value of the goods involved in the execution of the 'works contract', it may be noted, the assessing authority had made an addition of 21%. While challenging the same, the assessee raised specific grounds of appeal. Since much argument has been advanced by both sides on the strength of grounds of appeal, contents of paragraph 35 of the memo of appeal filed by the assessee before the Tribunal, may be noted. It reads as below: ''Taxing the sale of goods element in a works contract under articls 366-(29-A)(b) read with Entry 54 List II is permissible even after incorporation of goods provided tax is directed to the value of goods and does not purport to tax the transfer of immovable property. The value of the goods which can constitute the measure for the levy of the tax has to be the value of the goods at the time of incorporation of the goods in works even though property passes as between the developer and the flat purchaser after incorporation of goods.'' 80. In the first place, the assessee disputed the assumption of profit @ 21%. Then, of its own, it referred to and relied on the earlier orders of the Tribunal providing for 10% additions. Largely it disputed the correctness of the finding of the Tribunal (in other cases) assuming profit @ 21%. Seen in that light, while the assessee did not accept the correctness of the finding of the Tribunal to compute 10% profit over the book value of the goods of profit for execution of the 'works contract' for reasons not known to the Court, it did not rely on Rule 9 of the Rules, that provides for permissible deductions. It may not be gainsaid, to rely on Rule 9 of the Rules, the assessee would have been burdened to prove the expenses claimed. 81. Therefore, though the books of accounts of the assessee have not been rejected, in absence of proof of facts requiring applicability of Rule 9, estimation of deemed profit became necessary to be made - to determine the turnover of 'works contract'. In that, the Tribunal cannot be faulted for applying the 10% rule as a rough and ready method to estimate, considering compoundable cases, the turnover (to be subjected to tax). In that, the Tribunal cannot be faulted for applying the 10% rule as a rough and ready method to estimate, considering compoundable cases, the turnover (to be subjected to tax). Insofar as the Tribunal seems to have applied the time tested measure to make estimate, I find no good ground to offer any interference with the finding of the Tribunal, in exercise of revision jurisdiction of the Court. 82. As to the alternate submission advanced by learned Senior Counsel for the assessee, that the value of goods has to be seen on the date when the goods may have been actually incorporated in a 'works contract', it is neither practical nor it otherwise merits acceptance. Construction activity that continues on a day-to-day basis and experiences price fluctuations everyday, may never be subjected to such an impractical exercise of computation as may lead to endless complications and disputes. If accepted, it would be to compel the authorities to monitor the day-to-day price of raw materials used in construction and would also imply that the assessee would have prove - to what extent goods may have been incorporated to a 'works contract', each day. Therefore, as a method, if the value of the goods applied to a 'works contract', is taken with reference to the total price, there appears no infraction of the law. Otherwise, Rule 9 enables the assessee to seek all appropriate allowable deductions. Thus, on this issue as well, the matter does not call for any interference. 83. Suffice to state, if the assessee had desired to claim more deduction, then it ought to have maintained its books in accordance with Rule 9 of the Rules. The assessee cannot claim those deductions in absence of books of accounts, to justify the same. At present, the issue is not justiciable by this Court any further, in exercise of revisional jurisdiction. Insofar as the findings recorded by the Tribunal do not appear to be perverse or unfounded, no interference is warranted on that count, either. 84. In view of the above, the first question of law is answered in the negative and the second question of law is answered in the affirmative i.e. both questions are answered in favour of revenue and against the assessee. 85. Present revision fails and is dismissed. No order as to costs.