Holding

A contract for construction of flats is a works contract, and the State may tax the deemed sale of goods used therein; the challenged provisions of the Maharashtra VAT Act and Rules are constitutionally valid.

Summary

The Supreme Court examined whether agreements between a developer and flat purchasers constitute "works contracts" under Art.366(29‑A)(b) and whether the State can levy sales tax on the goods used in such contracts. It held that a construction agreement, even when coupled with a transfer of immovable property, remains a works contract and the tax on the deemed sale of materials is permissible. The Court affirmed the three‑test criteria (existence of a works contract, involvement of goods, and transfer of property in those goods) for taxing such transactions. It also upheld the constitutional validity of the Maharashtra Value Added Tax Act’s Section 2(24) explanation (b)(ii) and Rule 58(1A) of the MVAT Rules, finding them consistent with the 46th Amendment. Consequently, the tax demands against Larsen & Toubro were sustained and the appeals were allowed.

Issues considered

The nature of the development agreement: whether it is a works contract within Art.366(29‑A)(b).
Whether tax can be levied on goods deemed sold in the execution of a works contract.
Constitutional validity of Maharashtra VAT Act Section 2(24) explanation (b)(ii) and Rule 58(1A) of the MVAT Rules.
Applicability of the dominant‑nature test and other traditional tests post‑46th Amendment.
Whether a composite contract involving works and transfer of immovable property loses its character as a works contract.

Legislation cited

Constitution of Indias. Art.286(3)(b), s. Art.366(29‑A)(b)
Karnataka Sales Tax Act, 1957s. Section 28(6), s. Section 5‑B
Maharashtra Value Added Tax Act, 2002s. Section 2(24)
Maharashtra Value Added Tax Rules, 2005s. Rule 58(1), s. Rule 58(1A)
Sale of Goods Act, 1930

Subjects

works contracttax on sale of goodsArticle 366value additioncomposite contractdominant nature testconstitutional amendmentsales taxMaharashtra VATKarnataka Sales Taxconstruction contractdeemed sale

Judgment

[2013) 17 S.C.R. 678

A M/S. LARSEN & TOUBRO LIMITED & ANR.
v.
STATE OF KARNATAKA & ANR.
(Civn Appeal No.8672 of 2013)
SEP,TEMBER 26, 2013
B
[R.M. LODHA, J. CHELAMESWAR AND
MADAN B. LOKUR, JJ.]

Worl<s contract - Concept and meaning of - Held: The
C term "works contract" in Art.366 (29-A)(b) takes within its fold
all genre of worl<s contract and is not restricted to one specie
of contract to provide for labour and services alone - Nothing
in Art.366(29-A)(b) limits the term "worl<s contract" - Where a
contract comprises of both a worl<s contract and a transfer of
D immovable property, such contract does not denude it of its
character as worl<s contract - Constitution of India, 1950 - Art.
366(29-A)(b).

Worl<s contract - Levy of tax on goods deemed to have
E been sold in execution of a works contract - Three conditions
to be fulfilled - Held: The conditions are: a) there must be a
works contract, b) the goods should have been involved in the
execution of a works contract and c) 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
F do construction, the above three things are fully met.

Works contract - Building contract - Held: Building
contracts are species of the works contract - In the
performance of a contract for construction of building, the
G 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 - The value of the goods which can
constitute the measure for the levy of the tax has to be the
H 678
M/S. LARSEN & TOUBRO LIMITED v. STATE OF 679
KARNATAKA
value of the goods at the time of incorporation of the goods A-
in works even though property passes as between the
developer and the flat purchaser after incorporation of goods
- If the developer has undertaken to build for the prospective
purchaser for cash or deferred payment or a valuable
consideration pursuant to a. contract then to that extent, the B
contract is works contract and there is deemed S<J/e ofmaterial
(goods) used in the construction of building and merely
because the builder has a right of lien in the event due
monies are not paid does not alter the character of contract
being works contract -However, activity of construction c-
undertaken by the developer would be works contract only
from the stage the developer 'enters into a contract with the
flat purchaser - The value addition made to the goods
transferred after the agreement is entered into with the flat
purchaser can only be made chargeable to tax by the State
9
Government- Constitution of India, 1950 - Art. 366(29-A)(b).

Works contract - Composite contract - Held: 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 E
virtually diminished - The dominant nature test has ncJ
application) - 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 F
sales tax on the materials used in such contract if such
contract otherwise has elements of works contract - The
enforceability test is a/so not determinative.

Constitution of India, 1950- Art.366(29-A)(b) rlw Entry 54 G
List II of Seventh Schedule - Taxing the sale of goods.
element in a works contract - When permissible - Held: It 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 - Works contract.
H
680 SUPREME COURT REPORTS (2013] 17 S.C.R.

A Constitution of India, 1950 - Art. 366(29-A)(b) rlw Entry 54
List II of Seventh Schedule - Expression "tax on the sale or
purchase of goods" - Meaning of - Held: It 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
B contract - Works contract.

Constitution of India, 1950 - Art. 366(29~A)(b) - Object
of - Held: Is. to bring transactions where essential ingredients
of 'sale' defined in the Sale '6f Goods Act, 1930 are absent
C within the ambit of sale or purchase for the purposes of levy
of sales tax - 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 - Sale of Goods Act,
1930 - Works contract.

D Constitution of India, 1950- Art. 366(29-A)(b) - Transfer
of property - Legal fiction - Held: Transfer of property in
goods u/clause 29-A(b) of Art.366 is deemed to be a sale of
the goods involved in the execution of a works contract by the
p~rson making the transfer and the purchase of those goods
E , by the person to whom such transfer is made - Even in a
single and indivisible works contract, by virtue of the legal
fiction introduced by Art.366(29-A)(b), there is a deemed sale
of goods which are involved in the execution of the works
contract - Such a deemed sale has all the incidents of the
F sale of goqds involved in the execution of a works contract
where the r;ontract is divisible into one for the sale of goods
and the other for supply ·Of labour and services - Works
contract.
Maharashtra Value Added Tax Act, 2002 - s.2(24),
G explanation (b)(ii) - Expression "sale" in - Amended
definition of - Held: Is constitutionally valid.

Maharashtra Value Added Tax Rules, 2005 - r.58(1A) -
Valuation of goods - Mode of - State Government to bring
H
M/S. LARSEN & TOUBRO LIMITED v. STATE OF 681
KAR NATAKA
clarity in r.58(1-A) - Subject to this, validity of r.58(1-A) A
sustained.
The instant two sets of appeals - one from Karnataka
and the other ;from- Maharashtra, related, to the concept
of works contract and distinction between it and a B
contract of sale.
In regard to the appeals from Karnataka, the leading
case related to Larsen & Toubro (L& T). L& T was
engaged in property development alongwith owners of
vacant land sites in Bangalore for construction of a multi- C
storeyed apartment complex. Accordingly, it entered into
agreements of sale with intende~ purchasers, which
provided that on the completion of construction, the
apartments would be handed over to the purchasers who
will also get an undivided Interest in the land. The revenue D
authorities concerned issued provisional assessment
orders under the Karnataka Sales Tax Act, 1957 and
alongwith it also issued demand notices against L & T ·
on the g'round that it was li~ble to pay tax for
development of. projects by it. E

L & T filed writ petition before the Karnataka High
Court opposing the demand .on ground that the·
development agreement was not a works contract. The
Single -Judge of the High Court noted that the
F
·controversy raise«i-by, the L&T was covered by the
· decision of the Supreme Court in Raheja Development
Corporation case, and, accordingly, dismissed the writ
petition holding that as L & T' had entered into an
agreement to carry out construction activity on behalf of
someone else for cash or .for·deferred pay.ment or for. any G
· o~her valuable construction, it was carrying out works
contract.and therefore became liable to pay turnover tax
on the transfer of goods involyed in such work.contracts.
The Division Bench of the High Court concurred with the
Single Judge and dismissed the writ ·appeal. ·· H
682 SUPREME COURT REPORTS [2013] 17 S.C.R.

A In order to consider the question whether the view
taken in Raheja Development case with reference to
definition of "works contract" in Karnataka Sales Tax· Act,
1957 was legally justified, the matter was referred for
consideration by the present Larger Bench. The question
B for consideration before this Court was 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.

C In the other set of appeals arising from the judgment
of the Bombay High Court, challenge was laid to the
constitutional validity of Section 2(24) of the Maharashtra
Value Added Tax Act, 2002 ("MVAT Act") as amended
1
initially by Maharashtra Act XXXll of 2006 and thereafter
by Maharashtra Act XXV of 2007 and Rule 58(1A) of the
D Maharashtra Value Added Tax Rules, 2005 ("MVAT
Rules").

Answering the Reference and sending the matters
back to the Regular Bench for final disposal, the Court
E
HELD:1.1. When the agreement between the
promoter/developer and the flat purchaser is to construct
a flat and eventually sell the flat with the fraction of land,
such transaction involves the activity of construction
inasmuch as it is only when the flat is constructed then
F it can be conveyed. Therefore, 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 is
obliged to undertake or to execute works. Such activity
G 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
H construction, the factors such as, the flat purchaser has
MIS. LARSEN & TOUBRO LIMITED v. STATE OF 683
KARNATAKA
no control over the type and standard of the material to A
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, are not of much significance and in any case
these factors do not detract the contract being works B
contract insofar as construction part is concerned. [Para
93] [740-D-G]

1.2. 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: (i) there must C
be a works contract, (ii) the goods should have been
involved in the execution of a works contract, and (iii) 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 D
three things are fully met. In a contract to build a flat 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. E
[Para 94] [740-H; 741-A-B]

1.3. 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 F
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 G
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. [Para 95] [741-C-E]

1.4. Value addition as a concept after Forty-sixth
Amendment to the Constitution has been accepted by H
684 SUPREME COURT REPORTS 12013] 17 S.C.R.

A this Court in P.N.C. Construction case. While dealing with
this concept, the Court said that value addition was
important concept which had arisen after the Forty-sixth
Amendment by insertion of sub-clause (b) of clause (29-
A) in Article 366. It has now become possible for the
B States to levy sales tax on the value of the goods
involved in a works contract in the same way in which
the sales tax was leviable on the price of the goods in a
building contract. On account of the Forty-sixth
Amendment in the Constitution, the State Governments
c are empowered ·to levy sales tax on the contract value
which earlier was not possible. [Para 96] [741-E-G]

1.5. 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
D contract. Article 366(29.·A)(b) does contemplate a
situation where the goods may not be transferred in the
form of goods but may be transferred in some other form
which may even be in the form of immovable property.
[Para 97] [741-H; 742-A-B]
E
1.6. The State legislatures lack legislative power to
levy tax on the transfer of immovable property under
Entry 54 of List II of the Seventh Schedule. However, the
States do have competence to levy sal~s tax on the sale
F of goods in an agreement of sale of flat which also has a
component of a deemed sale of goods. Aspects theory
though does not allow the State legislature to entrench
upon the Union List and tax services by including the
cost of such service in the value of goods but that does
not detract the State to tax the sale of goods element
G involved in the execution ofworks·contract in a composite
contract like contract for construction of building and
sale of a flat therein. [Para 100] [743-F-H; 744-A]

1.7. The legal position is summarised as follows:
H
MIS. LARSEN & TOUBRO LIMITED v. STATE OF 685
KARNATAKA

(i) For sustaining the levy of tax on the goods A
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 B
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 c
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 0
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 E
works contract and is not restricted to. one specie of
contract to prov!.de for labour and services alone. Nothing
in Article 366(29-A)(b) limits the term "works contract". (iv)
· · Building contract!? 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
d.iminished. (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 G
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 p.roperty in ·
goods and rather it is rendering of service or the ultimate
H
686 SUPREME COURT REPORTS (2013) 17 S.C.R.

A 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
B 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
c works contract, by virtue of the legal fiction introduced
by Article 366(29-A)(b), there is a deemed sale of goods
which are involved in the execution of the works contract.
Such a deemed sale has all the incidents of the sale of
goods involved in the execution of a works contract
where the contract is divisible into one for the sale of
0
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
E 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
F the form other than goods involved in the execution of
works contract. (x) Article 366(29-A)(b) serves 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.
G 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. (xi)
Taxing the sale of goods element in a works contract
under Article 366(29-A)(b) read with Entry 54 List II is
H permissible even after incorporation of goods provided
M/S. LARSEN & TOUBRO LIMITED v. STATE OF 687
KARNATAKA
tax is directed to the value of goods and does not purport A
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 B
purchaser after incorporation of goods. [Para 101) [744-
E-H; 745-A-H; 745-A-H; 746-A-G]

1.8. The argument on behalf of the developers that
the flat purchaser is entitled to transfer of flat and
conveyance of fraction of land only when all installments C
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 D
purchaser has no merit. The submissiq,n 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 E
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, thus, F
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. [Para 110] [749-G-H; 750-A-C, G]

1.9. In the development agreement between the owner G
of the land and the developer, direct monetary
consideration may not be involved but such agreement
cannot be seen in isolation to the terms contained therein
and following development agreement, the agreement in
H
688 SUPREME COURT REPORTS [2013] 17 S.C.R.

A the nature of the tripartite agreement between the owner ·
of the land, the developer and the flat purchaser
whereunder the developer has undertaken to construct
for the flat purchaser for monetary consideration. Seen
thus, there is nothing wrong if the transaction is treated
B as a composite contract comprising of both a works
contract and a transfer of immovable property and levy
sales tax on the value of the material involved in execution
of the works contract. The observation in the referral order
that if the ratio in Raheja Development is to be accepted
C then there would be no difference between works contract
and a contract for sale of chattel as chattel overlooks the
legal position. [Para 111) [750-G-H; 751-A-C]

1.10. The argument that flat is to be sold as a flat and
not an aggregate of its component parts is already
D negated by the Constitution Bench in the case of
Builders' .Association. Further, if the developer has
undertaken to build for the prospective purchaser for
cash or deferred payment or a valuable consideration
pursuant to a contract then to that extent, the contract is
E works contract and there is deemed sale of material
(goods) used in the construction of building and merely
because the builder has a right of lien in the event due
monies a.re not paid does not alter the character of
contract being works contract. [Paras 112 and 113) [751-
F D; 752-G-H; 753-A]

1.11. In Article 366(29-A)(b), the term. 'works contract'
. covers all genre of works contract and it is not limited to
one specie of .. the contract. In Raheja Development, the
definition of "works contract" in KST Act was under
G consideration. The Court held that develo-per had
undertaken to build for the flat purchaser and so long as
there was no termination of the contract, the construction
is for and on behalf of the purchaser and it remains a
"works contract". The view taken by the two Judge
H
MIS. LARSEN & TOUBRO LIMITED v. STATE OF 689
KARNATAKA
Bench in Raheja Development is justified. [Para 114) [752- A
B, D-E]
1.12. It may, however, be clarified that activity of
construction undertaken by the developer would be
works contract only from the stage the developer enters
into a contract with the flat purchaser. The value addition B
made to the goods transferred after the agreement is
entered into with the flat purchaser can only be made
chargeable to tax by the State Government. [Para 115)
[753-F-G]
c
1.13. The submission that the view in Raheja
Development that when a completed building is sold,
there is no work contract and, therefore, no liability to tax
is not correct statement of law, does not appeal. If at the
time of construction and until the construction was
D
completed, there was no contract for construction of the
building with the flat purchaser, the goods used in the
construction cannot be deemed to have been sold by the
builder since at that time there is no purchaser. That the
building is intended for sale ultimately after construction
does not make any difference. [Para 117) [753-B-C] E
K. Raheja Development Corporation v. State of
Kamataka (2005) 5 SCC 162: 2005 (3) SCR 1210 - affirmed.
Builders' Association of India and others v. Union of India
and others (1989) 2 SCC 645: 1989 (2) SCR 320 - followed. F
Rainbow Colour Lab Rainbow Colour Lab & Anr. v. State
of M.P. & Ors. (2000) 2 SCC 385: 2000 (1) SCR 594 - stood
overruled.
State of Madras v. Gannon Dunkerley and Co. (1959) G
SCR 379 - held impliedly undone.
Mis. Larsen & Toubro Limited & Anr v. State of Karnataka
& Anr. 2008 (17) SCC 199; Bharat Sanchar Nigam Limited
and another v. Union of India and others (2006) 3 sec 1:
H
690 SUPREME COURT REPORTS (2013) 17 S.C.R.

A 2006 (2) SCR 823; The Assistant Sales Tax Officer and
Others v. B.C. Kame, Proprietor Kame Photo Studi (1977) 1
SCC 634: 1977 (2) SCR 435; Hindustan Shipyard Ltd. v.
State of A.P. (2000) 6 SCC 579: 2000 ( 1 ) Suppl. SCR 592;
Nahalchand La/oochand Private Limited v. Panchali
B Cooperative Housing Society Limited; (2010) 9 SCC 536:
2010 (10) SCR 804; Commissioner of Sales Tax, M.P. v.
Purshottam Premji 1970 26 S.T.C. 38; State of Andhra
Pradesh & Ors. v. Larsen & Toubro Ltd. & Ors. (2008) 9 SCC
191: 2008 (12) SCR 843; Mis. Gannon Dunkerley & Co. and
C others v. State of Rajasthan and Others (1993) 1 SCC 364:
1992 (3) Suppl. SCR 103; Keshav Mills Co. Ltd. v.
Commissioner of Income Tax, Bombay North, Ahmedabad
AIR 1965 SC 1636: 1965 SCR 908; Dewan Joynal Abedin
v. Abqul Wazed (1988) Supp SCC 580; Kartar Singh
D Bhadana v. Hari Singh Na/wa & Of$ (2001) 4 SCC 661: 2001
(2) SCR 790; Associated Cement Companies Ltd. v.
Commissioner of Customs; (2001) 4 SCC 593: 2001 (1)
SCR 608; State of U.P. & Ors. v. P.N. C. Construction Co. Ltd.
& Ors. (2007) 7 sec 320: 2001 (8) SCR 927; M.R.
Hornibrook (Pty.) Ltd. v. The Federal Commissioner of
E Taxation (1939) 62 C.L.R. 272; Federation of Hotel &
Restaurant Association of India, etc. v. Union of India & Ors.
(1989) 3 SCC 634: 1989 (2) SCR 918; State of Andhra
Pradesh & Ors. v. Larsen & Toubro Ltd. & Ors. (2008) 9 SCC
191: 2008 (12) SCR 843; Radha Raman v. State of Uttar
F Pradesh & Ors. AIR 1954 All 700; Lee v. Griffin (1861) 1 B.
& S. 272; Robinson v. Graves; (1935) 1 KB 579; Chandra
Bhan Gosain v. State of Orissa and Others; (1964) 2 SCR
879; The State of Punjab v. Mis. Associated Hotels of India
Ltd. (1972) 1 SCC 472: 1972 (2) SCR 937; Hindustan
G Aeronautics Ltd. v. State of Karnataka (1984) 1 SCC 706:
1984 (2) SCR 248; State of A.P. v. Kone Elevators (India) Ltd.;
(2005) 3 SCC 389: 2005 (2) SCR 152; State of Gujarat
(Commissioner of Sales Tax, Ahmedabad) v. Mis. Variety
Body Builders; (1976) 3 SCC 500: 1976 (0) Suppl. SCR 131
H - referred to.
MIS. LARSEN & TOUBRO LIMITED v. STATE OF 691
KARNATAKA
Hudson's 'Building Engineering Contracts', Eleventh A
edition, Volume 1; Halsbury's Laws of England, Fourth
Edition, Volume 41, para 603; Benjamin's Sale of Goods,
Fourth Edition, Para 1.042 and Pollock and Mulla on Sale
of Goods [1990, Fifth Edition, Page 53] - referred to.
2.1. There is challenge to the constitutional validity 8
of explanation (b){ii) to Si!ction 2(24) which was brought
by amendment with effect from 20.06.2006 in MVAT Act
and sub-rule (1A) which was inserted into Rule 58 of the
MVAT Rules by a notification dated 01.06.2009. There is
no doubt that the amendment in explanation b(ii) to C
Sectipn 2(24) was brought because of the judgment of
this Court in Raheja Development. Since Raheja
Dev,elopment lays down the correct legal position, thus,
there is no merit in the challenge to the constitutional
validity to the provisions of explanation (b)(ii) to Section D
2(24) of MVAT which were amended with effect from
20.06.2006. The provision under challenge was not in
breach of any constitutional boundaries. [Paras 119, 121]
[753-E; 754-C-E]
·2.2. Sub-rule .(1A) was inserted into Rule 58 by a E
notification dated 01.06.2009. As a matter of fact, Rule
58(1) of the MVAT Rules provides that the value of the
goods at the time of the transfer of the property in goods
involved in the execution of a works contract may be
determined by effecting certain deductions from the value F
of the entire contract insofar as the amounts relating to
deductions pertain to the said works contract. The value
of the goods which can constitute the measure of the
levy of the tax has to be the value of the goods at the time
of incorporation of goods in the works even though G
property·in goods passes later. Taxing the sale of goods
element in a works contract is permissible even after
incorporation of goods provided tax is directed to the
value of goods at the time of incorporation and does not:
I
H
692 SUPREME COURT REPORTS [2013] 17 S.C.R.

· A purport to tax the transfer of immovable property. The
mode of valuation of goods provided in Rule 58(1A) has
to be read in the manner that meets this criteria and it is
read down accordingly. The Maharashtra Government
has .to bring clarity in Rule 58 (1-A) as indicated above.
B Subject to this, validity of Rule 58(1-A) of MVAT Rules is
sustained. tParas 123, 124) [756-B-C; 757-G-H; 758-A-B]
Case Law Reference:
2005 (3) SCR 1210 affirm.ed Para 2
c 2008 (17) sec 199 referred to Para 2
(1959) SCR 379 held impliedly undone
Para 17
1989 (2) SCR 320 followed Para 17
D 2006 (2) SCR 823 referred to Para 17
1977 (2) SCR 435 referred to Para 20
2000 (1) Suppl. SCR 592 referred to Para 20
2010 (10) SCR 804 referred to Para 24
E
1970 26 S.T.C. 38 referred to Para 25
2008 (12) SCR 843 referred to Para 31
1992 (3) Suppl. SCR 103 referred to Para 41
F 1965 SCR 908 referred to Para 43
(1988) Supp sec 580 referred to Para 45
2001 (2) SCR 790 referred to Para 45
2001 (1) SCR 608 referred to Para 46
G stood overruled Para 46
2000 (1) SCR 594
2007 (8) SCR 927 referred to Para 46
(1939) 62 C.L.R. 272 referred to Para 47

H
M/S. LARSEN & TOUBRO LIMITED v. STATE OF 693
KARNATAKA
1989 (2) SCR 918 referred to Para 48 A
(2008) 9 sec 191 referred to Para 50
AIR 1954 All 700 referred to Para 74
(1861) 1 8. & $. 272 referred to Para 77
B
(1935) 1 KB 579 referred to Para 78
(1964) 2 SCR 879. referred to Para 79
1972 (2) SCR 937 referred to" Para 82
1984 (2) SCR 248 referred to Para 84 c
2005 (2) SCR 152 referred to Para 87
1976 (0) Suppl. SCR 131 referred to Para 88
CIVIL APPELLATE JURISDICTION : Civil Appeal No. D
8672 of 2013 etc.
From the Judgment' and Order dated 06.08.2007 of the
High Court of Karnataka at Bangalore in Writ Appeal being
W.A. No. 1409 of 2007.
E
WITH

C. A Nos. 8673-8684, 8685, 8686, 8687, 8688, 8690, 8691.
8692, 8693, 8695, 8696, 8697, 8698 &8699 of 2013

Dr. AM. Singhvi, K.V. Vishwanathan, N. Venkatraman, K. F
N. Bhat, Shekhar Naphade, Sameer Parekh, Sumit Goel,
Rukhmini Bobde, Somanadri Goud K. (for Parekh & Co.) Amol
Chitale, Pragya Baghel, Nirnimesh Dube, Kamna Sagar,
Ardhendumauli Kumar Prasad, Parimal Shroff, Mahesh
Agarwal, Abhinav Agrawal, E. C. Agrawala, Ankur Saigal, R. G
V. Prasad, Praveen Kumar, Shivaji M. Jadhav, Sanjay Kunur,
•
R.N. Keshwani, Rishi Agrawala, Prasenjit Keswani, Ranjeeta
Rohtagi, V. Patkar, Ashwin Acharya, S. Ravi Shankar, Sanjay
V. Kharde, Naira Jejeebhoy, Asha Gopalan Nair, Anitha
H
694 SUPREME COURT REPORTS [2013) 17 S.C.R.

A Shenoy, Neha Singh, Chinmoy Khaladkar, Preshit V. Surshe,
Sachin J. Patil, Randhir Chawla, Renu Saigal, Amit Thakkar,
V.N. Raghupathy for the Appearing Parties.

The Judgment of the Court was delivered by
,B R.M. LODHA, J. 1. Leave granted in all these special
leave petitions.

2. Does the two-Judge Bench decision of this Court in
Raheja Development' lay down the correct legal position? It is
c to consider this question that in Larsen and Toubro 2 a two-
Judge lilench of this Court has referred the matter for.
consideration by the larger Bench. In the referral order dated
19.8.2008, the two-Judge Bench after noticing the relevant
provisions of the Karnataka Sales Tax Act, 195,Z: and the
D distinction between a contract of sale and a works'contract
made the reference to the larger Bench by observing as follows:

"We have prima facie some difficulty in accepting the
proposition laid down in Para 20 quoted above. Firstly, in
our view, ·prima facie, M/s Larsen & Toubro - petitioner
E herein, being a developer had undertaken the contract to
develop the property of Dinesh Ranka. Secondly, the '
Show Cause Notice proceeds only on the basis that ,
Tripartite Agreement is the works contract. Thirdly, in the :
Show. Cause Notice there is no allegation made by the
F Department that there is monetary consideration involved
in the first contract which is the Development Agreement.

Be that as it may, apart from the disputes in hand, the point
which we have to examine is whether the ratio of the
G judgment of the Division Bench in the case of Raheja
Development Corporation (supra) as enunciated in Para

1. K. Raheja Development CorporatioR v. State of Karnataka; (2005) 5 SCC
162.
2. Mis. Larsen & Toubro Limited & Anr. v. State of Karnataka & Anr.; SLP(C)
H No. 17741 of 2007.
MIS. LARSEN & TOUBRO LIMITED v. STATE OF 695
KARNATAKA [R.M. LODHA, ·J.]
20, is correct. If the Development Agreement is not a works A
contract could the Department rely upon the second
contract, which is the Tripartite Agreement and interpret it ·
to be a works contract, as defined under the 1957 Act. The
Department has relied upon only the judgment of this Court
in Raheja Developmerit Corporation(supra) case because B
para 20 does assist th-e Department. However, we are of
the view that if the ratio of Raheja Development case is to
be accepted then there would be no difference between
. works contract and a contract for sale of chattel as a
chattel. Lastly, could it be said that petitioner - Company C
was the contractor for prospective flat purchaser. Under the
definition of the term "works contract" as quoted above the
contractor must have undertaken the work of construction
for and on behalf of the contractor (sic.) for cash, deferred
or any other valuable consideration. According to the D
Department, Development Agreement is not works
contract but the Tripartite Agreement is works contract
which, prima facie, appears to be fallacious. There is no
allegation that the Tripartite Agreement is sham or .bogus.

For the aforestated reasons, we direct the Office to place E
this matter before the Hon'ble Chief Justice for appropriate
directions in this regard, as we are of the view thatJhe
judgment of Division Bench in the case of Raheja
Development (supra) needs re-consideration by the larger
~~-" F
•
3. Of the 26 appeals under consideration before us, 14 are
from Karnataka and 12 from Maharashtra. Insofar as Karnataka
appeals are concerned, it is appropriate that we take the facts
from the leading case being Larsen and Toubro2. The ECC
division of Larsen and Toubro (for short, "L&T") is engaged in G
property development along with the owners of vacant sites. On
19.10.1995, L&T entered into a development agreement with
Dinesh Ranka, owner of the land bearing survey numbers 90/
1, 91, 92 (Part), 94, 95 and 96/1 (Part) together measuring 34
H
696 SUPREME COURT REPORTS [2013] 17 S.C.R.

A acres all situated at Kothanur Village, Segur Hobli, Bangalore
South Taluk, Bangalore, for construction of a multi-storeyed
apartment complex. The owner was to contribute his land and
L& T was to coristruct the apartment complex. After
development, 25% of the total space was to belong to the
8 owner and 75% to L&T. A power of attorney was executed by
the owner of the land in favour of L&T to enable it to negotiate
and book orders from the prospective purchasers for allotment
of built up area. Accordingly, L&T entered into agreements of
sale with intended purchasers. The agreements provided that
C on completion of the construction, the apartments would be
handed over to the purchasers who will get an undivided interest
.in the land also. Sale deeds, thus, were executed in favour of
the intended purchasers by L&T and the owner.

4. On 12.07.2005, the business premises of L&T were
D inspected by the Deputy Commissioner of Commercial Taxes
{lntelligence-1) South Zone, Koramangala, Bangalore
(hereinafter referred to as the 'Deputy Commissioner') and a
detailed statement of the Finance Manager was recorded.

E 5. On 21.12.2005, the Deputy Commissioner called upon
L&T to furnish the details of development project. L&T furnished
details on 24.07.2005 and 26.09.2005.

6. On 04.10.2005, the Deputy Commissioner served a
show cause notice on L&T stating that it was liable to tax as
F per th!! decision of this Court in Raheja Development1. L&T
responded to the show cause notice and submitted preliminary
objections on 10.10.2005. By a further communication dated
10.11.2005, L& T objected to the assessment of tax for
development of projects by it. The L&T inter alia submitted that
G. the development agreement was not a works contract per se
on account of the reasons: {a) the agreement was to develop
and market flats to customers; {b) the intent and purpose of the
agreement was to develop property by the petitioners on the
one hand and the land owner on the other; {c) the construction
H and development of the said land involved no monetary
M/S. LARSEN & TOUBRO LIMITED v. STATE OF 697
KARNATAKA [R.M. LODHA, J.]
consideration; and (d) the only consideration was that upon the A
completion of the entire project, L&T would be entitled to 75
per cent of the same.

7. Again on 04.01.2006, the business premises of L&T
were inspected and certain documents like agreement copies 8
and other documents relating to the transactions of the sale of
flats were seized for the purposes of further investigation and
verification.

8. On 02.02.2006, the Deputy Commissioner served upon
L&T a further notice proposing to tax the sale of materials used C
in the construction of flats on the ground that it was entitled to
75 per cent of the share of the projects. L&T filed detailed
objections to this notice as well.

9. On 03.07.2006, the Deputy Commissioner issued D
provisional assessment orders under Section 28(6) of the
Karnataka Sales Tax Act, 1957 (for short, 'KST Act') for the
years 2000-01 to 2004-05. Along with the provisional orders,
the Deputy Commissioner also issued demand notices raising
a total demand of Rs. 3,99,28,636/-. E
10. Initially, L&T preferred a writ petition before this Court
challenging the above demands but that writ petition was
withdrawn and a writ petition under Art'icle 226 of the
Constitution of India was filed before the Karnataka High Court.
F
11. The Single Judge of the Karnataka High Court noted
that the controversy raised by the L&T was covered by the
decision of this Court in Raheja Development1 and,
accordingly, dismissed the writ petition on 10.07.2007 by
observing as follows: G

"From the aforesaid observations of the Apex CourtJt is
very much clear that as the petitioner No. 1 had entered ·
into an agreement to carry out constn,J.ction activity on
behalf of someone else for cash or for deferred payment
or for any other valuable construction, it would be carrying H
698 SUPREME COURT REPORTS [2013] 17 S.C.R.

A out works contract and therefore would become liable to
pay turnover tax on the transfer involved in such work
contracts. It is also not in dispute in this matter that the
agreement of sale is entered into between the first
petitioner and the buyers of the flat even prior to completion
B of the construction of the building. Under such
circumstances, as has been held by the Apex Court in the
RAHEJA DEVELOPMENT CORPORATION's Case, the
petitioners are liable to pay the turnover tax on the transfer
of goods involved in such 'works contract'. In view of the
c dictum laid down by thEj recent judgment cited supra, this
Court does not find any merit in this writ petition."

12. L&T preferred an intra-court appeal. The Division
Bench of that Court concurred with the Single Judge and
dismissed the writ appeal by expressing its opinion as follows:
D
"In our view, so far as the definition of 'work contract' in
almost similar situation as in the present case has been
well considered by the Hon'ble Supreme Court in the case
of K. RAHEJA DEVELOPMENT CORPORATION (supra).
E The question as to whether that judgment as per Article
141 of the Constitution of India is the law of the land binding
on all the Courts in the Count!)'. Prima facie, we find that
the facts and circumstances in that case are almost similar
to the present case and as such, the ratio laid down in the
F RAHEJA's Case and relied upon by the learned Single
Judge is, in our view, just and proper. So far as the other
pronouncements are concerned, if the appellant feels that
it is necessary to get the pronouncement in RAHEJA's
Case reviewed, it is open for him to approach the Apex
Court and this Court cannot substitute its own findings on
G
the questions since the same has already been decided
by the Apex Court in RAHEJA's case."

13. Insofar as appeals from Maharashtra are concerned,
they arise from the judgment of the Bombay High Court. The
H Bombay High Court was concerned with the group of matters
MIS. LARSEN & TOUBRO LIMITED v. STATE OF 699
KARNATAKA [R.M. LODHA, J.]
wherein challenge was laid to the constitutional validity of A
Section 2(24) of the Maharashtra Value Added Tax Act, 2002
(for short, "MVAT Act") as amended initially by Maharashtra Act
XXXll of 2006 and thereafter by Maharashtra Act XXV of 2007
and Rule 58(1A) of the Maharashtra Value Added Tax 'Rules,
2005 (for short, "MVAT Rules"). B

14. The Division Bench of the Bombay High Court on
examination of rival contentions has, inter alia, ~eld; (a) works
contract have numerous variations and it is not possible to
accept the contention either as a matter of principle or as a
matter of interpretation that a contract for works in the course C
of which title is transferred to the flat purchaser would cease to
be works contract; (b) the provisions of MOFA recognise an
interest of the purchaser of the apartment, not only in respect
of the apartment which forms the subject matter of the
purchase, but also an undivided interest, described as a D
percentage in the common areas and facilities; (c) the
amendment to Section 2(24) clarifies the legislative intent that
·a transfer of property in goods involved in the execution of
works contract including an agreement for building and
. construction of immovable property would fall within the E
description of a sale of goods within the meaning of that
provision and it brings within the ambit of that expression
"transactions of that nature" which are referable to' Article 366
(29-A)(b); (d) by amended definition of the expression "sale"
in clause (b)(ii) of the explanation to Section 2(24), the F
transactions which involve works contract have been covered;
(e) the amendment in Section 2(24) does not transgress the
boundary set out in Article 366(29-A); (f) Rule 58(1A) of the
MVAT Rules provides that in the case of construction contracts
where the immovable property, land or as the case may be, G
interest therein is to be conveyed and the property involved in
the execution of the construction contract is also transferred, it
is the latter component which is-brought to tax; the value of the
goods at the time of transfer is to be calculated after making
the deductions which are specified under sub-rule ..(1 ); and (g) H
700 SUPREME COURT REPORTS [2013] 17 S.C.R.

A Rule 58(1A) provides for a measure for the tax by excluding
the cost of the land.

15. The Division Bench of the Bombay High Court, thus,
found no merit in the challenge to the constitutional validity of
Section 2(24) of the MVAT Act and Rule 58(1A) of the MVAT
B
Rules. The trade circulars and the notifications were also found
to be legal and consequently writ petitions were dismissed.

16. We have heard learned senior counsel and counsel for
the appellants and learned senior counsel for Karnataka and
C learned Advocate-General and learned senior counsel for
Maharashtra at quite some length.

17. Mr. Rohinton F. Nariman, learned senior counsel for
L& T led the arguments on behalf of the appellants. His
D submission is that Raheja Development' does not lay down
correct law. He submits that insertion of clause 29-A (b) in
Article 366 following the 61st Law Commission Report is
intended to separate the goods component from the labour and
services component of a composite works contract. The
amendment does not in any manner undo Gannon Dunkerfey-
E /3 insofar as that decision defines what a works contract is. In
thi~ regard, learned senior counsel extensively referred to the
decisions of this Court in Builders' Association• and Bharat
Sanchar° .It is argued by him that in Raheja Development1 it
was incorrectly assumed that the definition of works contract
F was wide although the definition of works contract in KST Act
and Madras General Sales Tax Act which was under
consideration in Gannon Dunkerley-13 was identical.

18. Alternatively, it is argued by Mr. Rohinton F. Nariman
G that if ii is accepted that the definition of 'works contract' in KST
3. State of Madras v. Gannon Dunkerley and Co.; (1959) SCR 379.
4 Builders' Association of India and others v. Union of India and others; (1989)
2 sec 645.
5. Bharat Sanchar Nigam Limited and another v. Union of India and others;
H (2006) 3 sec 1.
M/S. LARSEN & TOUBRO LIMITED v. STATE OF 701
KARNATAKA [R.M. LODHA, J.]
Act is wide which takes within its fold the contracts that are not A
commonly und~rstood as works contract then this would be
outside Entry 54 List II of the Seventh Schedule of the
Constitution for the reason that "works contract" as understood
in Gannon Dunkerley-13 has not in any manner been upset by
the constitutional amendment and would have to mean "works B
contract" as commonly understood.

19. Criticizing the conclusions drawn in paragraph 20 of
the judgment in Raheja Development1, it is argued by Mr.
Rohinton F. Nariman that these conclusions are incorrect for, C
(a) the well known tests to determine as to whether a particular
contract is a "works contract" or "contract of sale" have not been
adverted to; (b) the contract is not read as a whole. Its
substance and the main object has not been looked at and one
phrase is torn out of context without adverting to any other part
of the contract and based on this reasoning the contract is said D
to be a works contract; (c) though it is noticed that construction/
development is to be on payment of a price in various
installments but does not draw any conclusion from it; (d) it is
noticed that developer has a lien on the property but incorrectly
states that the lien is because they are not owners. The lien is E
obviously so that if monies are not recovered from the
prospective flat purchasers, the lien can be exercised, showing
thereby that the contract is a contract of an agreement to sell
immovable property; (e) after noticing that developer can
terminate the agreement if any one installment is not paid and F
can forfeit 10% of the amount that has been paid and can
ultimately resell the flat, it is held that the presence of such a
clause does not mean that the agreement ceases to be a
"works contract" without appreciating that such a clause would
have no place in a works contract and can only be consistent G
with the contract for the sale of immovable property inasmuch
as termination can take place if the entire consideration for the
immovable property is not paid; (f) it is stated that if there is
termination but there is no re-sale, there would be no works
contract only to that extent which is again wholly incorrect H
702 SUPREME COURT REPORTS [2013] 17 S.C.R.

A because post termination what happens to a particular flat is
of no relevance inasmuch as the prospective flat purchaser
goes out of the picture; and (g) the distinction between a flat
being constructed and a flat under construction is a distinction
without a difference for the reason that the judgment notices that
B if the a{lreement is entered into after the flat is already
constructed, there would be no 'sale' and no 'works contract'.
This is obviously for the reason that the flat.has already been
developed by the developer using his material and his plan and
is sold as such to a purchaser.
c 20. Mr. Rohinton F. Nariman extensively referred to the
decisions of this Court in 8. C. Kame• and Hindustan Shipyard'
. With reference to paragraphs 7 to 16, 22 and 24 to 26 in
Hindustan Shipyard', it is submitted that in a somewhat similar
fact situation, this Court came to conclusion that construction
D of various ships .for and on behalf of the customer would amount
to a 'sale' and not to a 'works contract'.

21. Based on the various clauses of the tripartite
agreement, it is argued that the main object of the agreement
E read as a whole and the substance of the agreement is to sell
and convey fraction of the land together with a fully constructed
flat only when all installments have been fully paid. The work
undertaken is for the joint development of the project as a
whole, i.e., work is undertaken by the developer for himself and
for the owner. The construction is not carried out for and on
F
behalf of the purchaser, but it is carried out entirely by the owner/
developer in order to exploit or get the best price for the land
and the structure built thereon from various flat purchasers. The
flat is to be sold as a flat and not an aggregate of its component.
G parts. No work is carried out for the purchaser who gets title to
the property only after" all work is complete. Learned senior
counsel argued that the ultimate test would be: if a suit for
6. The Assistant Sales Tax Officer and Others v. B.C. Kame, Proprietor Kame
Photo Studio; [(1977) 1 SCC 634].
H 7. Hindustan Shipyard Lid. v. State of A.P.; [(2000) 6 SCC 579].
/
I
M/S. LARSEN & TOUBRO LIMITED v. STATE OF 703
KARNATAKA [R.M. LODHA, J.]
specific performance is filed by the flat purchaser against the A
owner/developer, such suit would invariably be for the
conveyance of title and not for the construction of a building.
Conversely a suit by an owner/developer against the flat
purchaser would be for payment of consideration of a flat/
fractional interest in the lan.d. Such suit would never be for B
payment of work done at the behest of the flat purchaser and
payment of consideration therefor. It is, thus, submitted that the
judgment in Raheja Development1 does not lay down good law
and deserves to be overruled.

22. Mr. K.V. Vishwanathan, learned senior counsel for C
Maharashtra Chamber of Housiog Industries elaborately argued
based on the following contentions. First, that to attract Article
366(29-Aj(b) there has to be a "works contract" and in the
process ~f executing the works contract if certain transfer of
property 1occ1.1rs, such transfer would be deemed to be sale. If D
there is/ no works contract, the question of applying Article
366(29-!A)(b) would not arise. A distinction is drawn between
"works'; and "works contract". It is contended that an agreement
for sale is an agreement to transfer immovable property as an
indivisible whole which will result in the execution of a E
conveyance. There is no element of works contract involved.
Even if for the purpose of complying with the obligations of an
agreement for sale, a vendor carries out some works, it is not
on account of any works contract. Even if there are some
"works" involved, there is no "works contract" between the F
promoter and purchaser.

23. Secondly, that the applicability of Article 366(29-A)
read with Entry 54 of List II will arise only in matters which are
otherwise not covered under the ambit of sale and cannot apply G
to an agreement for sale of immovable property resulting in a
conveyance. He pressed into service (i) test of enforceability
(ii) common parlance test (view of the reasonable man) (iii) test
of substance of the contract and (iv) assignment test. Insofar
as common parlance test and test of substance of the contract
H
704 SUPREME COURT REPORTS (2013] 17 S.C.R.

A are concerned, Mr. K.V. Vishwanathan placed reliance upon
Bharat Sanchar6. As regards assignment test, paragraph 36
of the judgment in Builders' Association4 was referred to by the
learned senior counsel.

24. Thirdly, that amended definition under Article 366(29-
8
A) has not conferred on the States a larger freedom than what
they had before the amendment in regard to their power to levy
sales tax under Entry 54 of the State List. Paragraph 40 of the
Builders' Association• is relied upon. It is contended that an
agreement to sell entered into between the promoter and
C purchaser continues to remain an agreement to sell and the
provisions of MOFA does not change the nature of such
agreement. Reference is made to the decision of this Court in
Nahalchan'd Laloochand8.

D 25. And fourthly, that if State's submissions are accepted,
Article 366 (29-A)(b) has to be read as "a tax on the transfer
of property (whether as goods or in some other form) involving
works" which will not only distort the amendment but will render
the words "in goods" redundant. Article 366 (29-A)(b) does not
E provide for such an interpretation. The phrase "in some other
form" takes its colour from the preceding words namely,
"transfer of property in goods" and "whether as goods". The
said phrase "in some other form" cannot and would not mean
the transfer of an indivisible immovable property as a whole.
F Reliance is placed on the decision of this Court in Purshottam
Premji5 to differentiate between a sale and works contract. It
is contended that the distinguishing factors that have been laid
down in Purshottam Premji9 which were relied on by the Law
Commission should be considered as the only tests to
differentiate a works contract and a contract for sale.
G

8. Nahalchand Laloochand Private Limited v. Panchali Cooperative Housing
Society Limited; (2010) 9 SCC 536.
9. Commissioner of Sales Tax, M.P. v. Purshottam Premji; [1970] 26 S.T.C.
H 38.
MIS. LARSEN & TOUBRO LIMITED v. STATE OF 705
KARNATAKA [R.M. LODHA, J.]
26. Dr. Abhishek Manu Singhvi, learned senior counsel A
appearing for Promoters and Builders Association made brief
oral submissions which were followed by detailed written
submissions. The principal issue, according to him, is, wl:Jether
the agreement entered into between a promoter/developer and
a flat purchaser, pursuant to the provisions of Section 4 read B
with Rule 5 and Form V of MOFA can be divided into two parts,
{i) an agreement between the promoter/developer and the flat
purchaser to construct a flat; and (ii) an agreement between the
promoter/developer and the flat purchaser to eventually sell the
flat so constructed and whether the first part of the said c
agreement can be treated as a works contract whereby the flat
purchaser is accorded the status of a principal employer and
the promoter/developer acts as a mere contractor for him and
constructs the flat for and on behalf of the flat purchaser. While
conceding that an integral part of the transaction of sale of a D
flat is the activity of construction of the said flat but the moot
question in his view is whether such activity of construction has
the characteristics or elements of works contract. Learned
senior counsel highlighted the distinguishing features between
"works contract" and "contract for sale of goods" and having
E
regard to that it is submitted that the activity of construction
undertaken by the promoter/developer cannot be said to be
works contract for the reasons, (i) that developer does not
construct at the behest of the flat purchaser as on various
occasions the flat is constructed without there being any
booking for the said flat; (ii) the main intention of the agreement F
between the promoter/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;
(iii) the flat purchaser does not have any role in conceptualizing G
the project of construction nor does he have any say in the
designing and lay-out of the building to be constructed. The flat
purchaser does not have any control over the type and standard
of the material to be used in the construction of the building.
He does not get any right to- monitor or supervise the H
706 SUPREME COURT REPORTS (2013) 17 S.C.R.

A construction activity; (iv) the ownership in the material used in
the construction remains with the promoter/developer and the
said ownership passes to the flat purchaser only on the eventual
conveyance of the flat; (v) the accretion to the goods happens
in the hands of the promoter/developer and not when the flat is
B conveyed to the flat purchaser; and (vi) the construction linked
payment schedule is nothing but a method of payment in
installments.

27. It is the submission of Dr. Abhishek Manu Singhvi that
Article 366(29-A)(b) by a deeming fiction only deems the
C transfer of property in goods in execution of a works contract
as a sale but the said amendment does not contemplate a
deemed transfer of goods which actually does not happen at
the time of execution of the contract. The provisions of MOFA
do not change the character of the transaction entered into
D between the promoter/developer and the flat purchaser from that
of a pure sale of immovable property to a works contract. Even
in the absence of a statute like MOFA, the obligations and
restrictions prescribed ~herein would still be present as part of
obligations under the Indian Contract Act/Transfer of Property
E Act and its penalties for breaching the same would still be
applicable under the penal statutes.

28. While referring to Section 2(24) MVAT Act, it is
submitted by the learned senior counsel that a plain reading of
F amended explanation b(ii) to Section 2(24) of that Act will show
r.tat the said provision has not brought within its scope
transactions which are not in their substance works contract.
The amendment brought in explanation b(ii) to Section 2(24)
is merely explanatory in nature. Even after the amendment the
G transaction in which there is transfer of property in goods has
to be works contract. The amendment cannot be interpreted to
mean that transfer of property in goods in execution of any
agreement even if it is not a works contract has now been
included in the definition of sale. Such interpretation will render
the provision unconstitutional. Learned senior counsel submits
H
M/S. LARSEN & TOUBRO LIMITED v. STATE OF 707
KARNATAKA [R.M. LODHA, J.]
that the manner in which the State Government is expanding A
scope of Section 2(24) on the basis of the decision of this Court
in Raheja Development1. it has rendered the said provision
unconstitutional. According to Dr. Abhishek Manu Singhvi,
Raheja Development' therefore needs to be reconsidered and
overruled. B

29. As regards constitutional validity of the provisions of
Rule 58(1) and 58(1A) of MVAT Rules, it is submitted' that
these Rules and Rule 58(1-A) of the 2005 Rules include an
element of profit eamed by a promoter/developer on the sale C
of a flat. There are no provisions to take the profit element from
arriving at the value of goods. As a result income earned by
the promoter/developer from the profit on sale of the flat also
gets included in the value of goods and eventually the said
income gets taxed. Imposition of such tax on the income of the
promoter/developer is beyond the legislative competence of the D
State Government.

30. Without prejudice to the above arguments, it is firstly
submitted that assuming that the activity of construction ·
undertaken by the developer is a works contract then the same E
would be a works contract only from the stage when the
developer enters into a contract with the flat purchaser. Only the
value addition made to the goods transferred after the
agreement is entered into with the flat purchaser can be made
chargeable under MVAT Act. VAT cannot be charged on the F
entire sale price as described in the agreement entered into
between developer and flat purchaser as sought to be done
under the composition scheme. Secondly, it is submitted that
assuming that the agreement entered into between the
developer and the flat purchaser has two components. namely, G
a works contract and sale of proportionate share in the land
then the stamp duty on such transaction should be levied under
Article 25 (stamp duty for conveyance) only on the component
sale of proportionate share in the land and the stamp duty on
the value of construction carried out ought to be charged under H
· Article 63 (stamp duty for works contract).
708 SUPREME COURT REPORTS (2013] 17 S.C.R.

A 31. Mr. N. Venkatraman, learned senior counsel for
Builders Association while highlighting the background in which
clause (29-A) came to be inserted in Article 366 and drawing
distinction between a conventional sale and a works contract
submits that 'transfer' is imminent and indispensable
B requirement in both but in the case of a conventional sale,
property in goods gets transferred as intended by the parties
while in a works contract, property in goods get transferred
through accretion. Few illustrations have been referred to by him
and it is submitted that 'test of accretion' which is sine qua non
c for works contract is not satisfied in the agreements under
consideration. L&T 11 10 is referred which says, "once the work
is assigned by L&T to its sub-contractor, L&T ceases to
execute the works contract in the sense contemplated by Article
366 (29-A)(b) because property passes by accretion and there
is no property in goods with the contractor which is capable of
0
a re-transfer whether as goods or in some other form".

32. Learned senior counsel contends that when ultimately
the constructed flat is transferred or sold, it becomes a sale of :
an immovable property at which point of time the question of
E transfer on accretion does not arise. The transfer of goods has
to take place in the course of the construction of a building
before becoming an immovable property though the contract
may be indivisible contract for construction of a building in the
form of an immovable property. Once it becomes an immovable
F property, Article 366(29-A)(b) cannot be pressed into service
to such a transaction. He submits that an agreement to sell is
not a sale in its conventional sense and, therefore, cannot be
a deemed sale also.

G 33. It is submitted by Mr. N. Venkatraman that Section
2(24) of MVAT Act and Rules 58 and 58(1A) of MVAT Rules
seek to redefine the taxable event by moving away from theory

10. State of Andhra Pradesh & Ors. v. Larsen & Toubro Ltd. & Ors.; [(2008) 9
H sec 1e11.
M/S. LARSEN & TOUBRO LIMITED v. STATE OF 709
KARNATAKA [R.M. LODHA, J.]

of accretion to transfer of immovable property by way of A
conveyance and that renders these provisions unconstitutional.

34. Mr. Vinod Bobde, learned senior counsel appearing
on behalf of Promoters and Builders Association, Nasik argues
that after insertion of clause 29-A in Article 366, the works B
contract which was an indivisible one has by a legal fiction
altered into a contract which is divisible into one for sale of
goods. and the other for supply of labour. Thus, the goods
component is exigible to sales tax. However, the amendment
has not enlarged the meaning of "works contract" as commonly
understood. With reference to Section 2(24) explanation (b)(ii) C
of the MVAT Act, learned senior counsel submits that this
provision aims at taxing the sale of goods involved in the
execution of a works contract. In the case of a building contract
on land, the contractor must be carrying out the building activity
for consideration which obviously means that he should be D
receiving consideration from the person who has engaged him
as contractor. The provision does not cover an owner or
developer of land who is constructing a building for the purpose
of ultimately selling the flats therein to purchasers. Such owner
or developer does not receive any consideration from anyone E
for carrying out of the building activity; what he receives is
simply the sale price of the flats from the purchasers. According
to Mr. Vinod Bobde, the provisions so read would not
transgress Article 366 (29-A) but if it is read as was done in
Raheja Development1, it would be unconstitutional. F

35. It is argued by Mr. Vinod Bobde that an agreement of
sale whether simplicitor or in Form V under the MOFA is not a
"works contract". It only settles terms for the sale of property
and the sale ultimately takes place in pursuance thereof unless G
the contract is terminated. The ''works" component and "goods"
component are totally absent in the agreement. There is no
question of taxing sale of goods in an agreement of sale. The
buyer does pay the sales tax on the purchase of goods/material
used in construction of the building. Such goods/materials are
H
710 SUPREME COURT REPORTS [2013] 17 S.C.R.

A purchased from the dealers registered under the Act. What the
taxing authorities seek to do by treating an agreement for sale
of immovable property, namely, flat to be a "works contract"
within the meaning of Section 2(24), explanation (b)(ii) is to
again tax the goods used in the construction of the building.
B This cannot be done because the builder is not building as the
contractor for the flat purchaser but for himself, and he cannot
possibly transfer such goods to himself.

36. Mr. Vinod Bobde submits that the High Court's view
C that the. element of sale of immovable property can be there in
a works contract is clearly erroneous. The agreement of sale
in Form V under the MOFA is not an agreement simpliciter and
the aspect that MOFA creates the right and interest in the flat
as a measure for protecting prospective flat purchasers is
irrelevant. With reference to Entries 25, 5 and 63 of the Bombay
D Stamp Act, 1958 which provide for stamp duty on conveyance
including an agreement for sale of property, agreement or its
record or memorandum of agreement and works contract
respectively, _it is submitted that State has been levying stamp
duty on agreement of sale under E.ntry 25 and not under Entry
E 63 and hence the State does not consider an agreement for
sale to be a works contract.

37. Mr. Shivaji M. Jadhav learned counsel appearing for:
one of the appellants has broadly followed the above
F submissions. He submits that expression "in so'me other form"
in Article 366(29-A)(b) does not mean immovable property but.
some other form of goods being movable property. According
t6 him, artificial rules or other enactments like MOFA, Bombay
Stamp Act would not be relevant at all in ascertaining whether
G transfer of property in goods has taken place in the execution
of works contract. Model agreement Form V in MOFA does not
indicate that construction of a flat by the developer/promoter is
being carried on for and on behalf of the purchaser of the flat.
Rather it supports the view that buyer is interested in what is
constructed as a flat and not the building material. MOFA
H
M/S. LARSEN & TOUBRO LIMITED v. STATE OF 711
KARNATAKA [R.M. LODHA, J'.]
;

ensures that the theory of accretion is not applicable and the A
flat purchaser is not left at the mercy of the builder.

38. Learned counsel also submits that if Section 2(24)
explanation b(ii) of the MVAT Act is read in the manner
suggested by this Court in Raheja Development1, such B
provision is rendered unconstitutional. As regards Rule 58(1)
and Rule 58 (1-A), the submission of the learned counsel is that
these Rules suffer from various infirmities and· are unable to
carry out the objectives of MVAT Act.

39. In the counter arguments advanced on behalf of the two . C ·
States - Karnataka and Maharashtra - Raheja Development1
has been stoutly pefended. Mr. K.N, Bhat, learned senior
counsel for Karnataka submits that view taken in Raheja
Development1 is correct and needs no reconsideration - both
on merits as well as on the basis of binding precedents on the D
principles governing reconsideration of an earlier decision. He
submits that Article 366(29-A) uses the phraseology employed
in Entry 54 of List II that reads, "taxes on sale or purchase of
goods .... " For the purpose of Entry 54 List II, ·~axes on the sale
or purchase of goods" includes "tax on the transfer of property E
in goods (whether as goods or in some otf:ler form) involved in
the execution of works contract". Transfer of property in goods
is the essence of definition of 'sale' in Section 4 of the Sale of
Goods Act. Article 366(29-A)(b) can be rephrased as "a tax
on the sale of goods involved in the execution of a works F
contract" and in any case by the deeming fiction incorporated
'in the above provision, it shall be deemed to be a sale of those
goods by the person making the transfer and a purchase by a
person to whom such transfer is made. The taxable event is
the deemed sale of goods involved in the execution of works G.
contract. Article 366 (29-A) has been inserted to remedy the
situation arising from the decision in the Gannon Dunkerley-13
where attempt to levy sales tax on the sale of goods involved
in the execution of works contract wa·s held to be
unconstitutional. This was on the basis that a works contract
H
712 SUPREME COURT REPORTS [2013) 17 S.C.R.

A could not be dissected into contract for "works and services"
and contract for "sale of goods". Mr. K.N. Bhat submits, relying
upon para 41 in Builders' Association4, that definition of 'works
contract' KST Act does not go beyond what is contemplated
in the Constitution.
B
4.9. Mr. K.N. Bhat's submission is that in order to sustain
levy of sales tax on the goods deemed to have been sold in
the execution of works contract the following conditions are to
be met, (a) there must be works contract, i.e., any contract to
C do construction, fabrication and the like; (b) the goods deemed
to have been sold should have been involved in the execution
of a works contract; and (c) the property in those goods must
be transferred to a third party either as goods or in some other
form. The taxable event is deemed sale. It is irrelevant whether
transferee was a party to the works contract. All that is required
D to be enquired into is as to whether the goods were involved
in the execution of the works. By Forty-sixth Constitutional
Amendment, the effect of Gannon Dunkerley-13 has been
. neutralized. Now that the works contract which was indivisible
according to Gannon Dunkerley-13 are divisible and the goods
E involved in the execution of works contract that were then not.
taxable' are now taxable. '
'
41. The whole idea by insertion of clause 29-A(b) in Article·
366, Mr. K.N .. Bhat submits, is to make the materials used in'
F the buitding activity liable to sales tax. Any other interpretation
will be contrary to the two decisions of the Constitution Benches
in Builders' Association4 and Gannon Dunkerley-11 11 • So
construed works contract simply means a construction activity.
If the building is retained by the builder himself, there is no
G deemed sale.

42. Mr.K.N. Bhat, however, submits that the statement of
law in Raheja Development1 that when a completed building

11. M/s. Gannon Dunkerley & Co. and others v. State of Rajasthan and Others;
H [(1993) 1sec 364].
MIS. LARSEN & TOUBRO LIMITED v. STATE OF 713
KARNATAKA [R.M. LODHA, J.]
is sold, there is no works contract and, therefore, no liability to A
tax, may not be correct statement of law. If the building was
intended for sale and is in fact sold, tax is attracted to the
deemed sale. Even in such cases, goods used in the
construction are deemed to have been sold by the builder
(dealer) to the purchaser. B

43. It also urged by Mr. K.N. Bhat that in the referral order,
the Bench has entertained certain doubts in respect of th!f.
decision of this Court in Raheja Development1 . However, suci1
doubts that a better view was possible is not good enough to
reconsider the decision. Relying upon decisions of this Court
c
in Gannon Dunkerley-II" and the-earlier decision in Keshav
Mills 12 , he submits that while recommending reconsideration
of an earlier decision, the Bench must first come to the
conclusion that the earlier decision was· clearly wrong for the
reasons stated. According to him,)vithin the settled standards, D
recommendation to consider Raheja Development1 does not
fall. Moreover, since Raheja Development1 in May, 2005 almost
all States have modified their laws in line with Raheja
Development1 and the need for change in a settled' practice
is not made out. · E

44. Mr. Darius Khambata, learned Advocate General and
Mr. Shekhar Naphade, learned senior counsel advanced
arguments on behalf of Maharashtra. It is argued that after
insertion of Article 366 (29-A)(b) in the Constitution, the transfer F
of movable property in a works contract is deemed to be sale
even though it is not a sale as per the Sale of Goods Act. The
works contract is now divisible. Article 366(29-A)(b) clarifies
that the transfer of the goods may be as goods or in some other
form. Therefore, the goods may remain as goods or cease to G
be goods, i.e., they may merge into immovable property. In this
regard, extensive reference has been made to Builders'
Association4 and it is submitted that the same submissions

12. Keshav Mills Co. Ltd. v. Commissioner of Income Tax, Bombay North,
Ahmedabad; [AIR 1965 SC 1636]. H
714 SUPREME COURT REPORTS [2013] 17 S.C.R.

A made by the States which were rejected by this Court in
.. Builders' Association4 are now sought to be raised almost on
similar lines by the appellants which have been rightly rejected
by the High Court.
. ' ..... '
45. Learned Advocate General and learned senior counsel
8
for Maharashtra submit that the term ''works contract" is nothing
but a contract in which one of the parties is obliged to undertake
or to execute works. The expression "works" is extremely wide
and can either mean the act of bestowing labour or that on
C which the labour is bestowed. In this regard, the two decisions
of this Court (i) Dewan Joynal Abedin' 3 and (ii) Kartar Singh 14
have been referred. It is submitted that the term "works" would
include the final product and, therefore, a works contract cannot
be confined to a contract to provide labour and services but is
a contract for undertaking or for bringing into existence some
D "works". Nothing in Article 366(29-A)(b) limits the term "works
contract". Although, works contract usually have only two
elements, i.e., labour and services as well as sale of goods but
the addition of few other elements does not denude such
contract being works contract. It is possible that there could be
E a works contract coupled with the sale of immovable property.
The transaction does not cease to be a works contract merely
because it may include other obligations.

46. Learned Advocate General argues that even in the
F case of a works contract, the ownership of the goods need not
pass only by way of accretion or accession to the owner of the
immovable property to which they are affixed or upon which the
· building is built; property can pass under the terms of a contract
or' by statute. He submits that the tests laid down in judgments
G prior to Forty-sixth Constitutional Amendment for determining
whe\her· a contract is a works contract or a sale of goods are
no longer applicable. There is no question of ascertaining the
dominant intention of the contract now since the sale of goods

13. Dewan Joynal Abedin v. Abdul Wazed; [(1988) Supp SCC 580].
·H 14. Kartar Singh Bhadana v. Hari Singh Nalwa & Ors.; [(2001) 4 SCC 661].
M/S. LARSEN & TOUBRO LIMITED v. STATE OF 715
KARNATAKA [R.M. LODHA, J.]
element is a deemed sale under Article 366(29-A)(b) and can A
be taxed separately. Hindustan Shipyard' was distinguished
and it was submitted that in Associated Cement15 a three-Judge
Bench of this Court has overruled the decision in Rainbow
Colour Lab 16 and it has been expressly noted that cases such
as Hindustan Shipyard' relate to the situation prior to Forty- B
sixth Amendment where the court had no jurisdiction to bifurcate
a works contract and impose sales tax on the transfer of
property in goods involved in the execution of the contract.
Reference was also made to a decision of this Court in P.N. C.
Construction 17 . According to learned Advocate General, it has c
now become possible for the States to levy sales tax on the
value of the goods involved in the works contract in the same
way in which the sales tax was leviable on the price of the
goods supplied in a buil~ng contract. This is where the concept
of "value addition" comes in. It is on account of Forty-sixth D
Amendment to the Constitution that the State Government is
empowered to levy sales tax on the contract value which earlier
was not possible.

47. Mr. Darius Khambata submits that a composite
contract comprising both a works contract and a transfer of E
immovable property does not denude it of its character as a
works contract. According to him, Article 366(29-A)(b) provides
for a situation where the goods are transferred in the form of
immovable property. He referred to an Australian case, M.R.
Hornibrook18 in this regard which has been approved by this F
Court in Builders' Association 4 .

48. Learned Advocate General has also pressed into

15. Associated Cement Companies Ltd. v. Commissioner of Customs; [(2001) G
4 sec 593].
16. Rainbow Colour Lab & Anr. v. State of M.P. & Ors.; [(2000) 2 SCC 385].
17. State of U.P. & Ors. v. P.N.C. Constn,ction Co. Ltd. & Ors.; [(2007) 7 SCC
320]
18. M.R. Hornibrook (Ply.) Ltd. v. The Federal Commissioner ofTaxation; [(1939)
62 C.L.R. 272. H
716 SUPREME COURT REPORTS [2013] 17 S.C.R.

A service the aspect theory of legislation. His submission is that
different aspects of the same transaction can involve more than
one taxable event. There is nothing to prevent the taxation of
different aspects of the same transaction as separate taxable
events. This would not constitute a splitting of an indivisible
B contract. Reference is made to a decision of this Court in
Federation of Hotel & Restaurant'•. The submission. of the
learned Advocate General is that transfer of immovable
property cannot be taxed as a sale of goods but there is no
constitutional bar to tax only the sale of goods element and
c separately tax the transfer of immovable property. Taxing the
sale of goods element in a works contract under Article 366
(29-A)(b) read with Entry 54 List II is permissible, provided the
tax is directed to the value of the goods and does not purport
to tax the transfer of immovable property.
D 49. Stoutly defending the impugned judgment of the
Bombay High Court, learned Advocate General submits that
Section 2(24) explanation b(ii) of MVAT Act has been rightly
held to be constitutional as the provisions in the MVAT Act offer
diverse options for valuation of the sale of goods element in a
E works contract. Each of these options is consistent with the
methods approved of by this Court in Gannon Dunkerley-II''.

50. As regards challenge to the constitutional validity of
Rule 58A and Rule 58(1A), it is submitted by learned Advocate
F General that these provisions are consistent with the principles
laid down in Gannon Dunkerley-II". The measure of tax is not
determinative of its essential character or of the competence
of the legislature. He sought to dispel the impression that Rule
58(1A) may result in double taxation. Distinguishing the
G decision of this Court in Larsen & Toubro-112°, learned
Advocate General submits that the observations made in para

19. Federation of Hotel & Restaurant Association of India, etc. v. Union of India
& Ors.; [(1989) 3 sec 634].
20. State of Andhra Pradesh & Ors.v. Larsen & Toubro Ltd. & Ors.; [(2008) 9
H sec 191].
M/S. LARSEN & TOUBRO LIMITED v. STATE OF 717
KARNATAKA [R.M. ·LODHA, J.]
19 does not apply to Maharashtra inasmuch as Section 45(4) A
of the MVAT Act ensures that it is either the builder or the sub-
contractor who pays the tax (being treated as one and jointly/
severally liable). In any case all claims of alleged double taxation
will be determined in the process of assessment of each
individual case. B

51. Highlighting the MOFA agreement in prescribed Form
V, learned Advocate General argues that the clauses therein
indicate that it comprises of a works contract along with the
agreement for sale. There is no reason to deny the applicability C
of Article 366(29-A) to such a works contract. His argument is
that sale of goods element in the works contract contained in
a MOFA agreement is taxable under Section 2(24) explanation
b(ii) of the MVAT Act. As long as there is an obligation to
construct under the agreement between the promoter and the
flat purchaser (in the case of Maharashtra being an agreement D
under the MOFA) the deemed sale of goods involved in the
execution of such a works contract can be taxed even after
incorporation of the goods in the works and when the property
passes as between the promoter and the flat purchaser. It is
submitted that what is at issue before this Court is not the E
determination of when the taxable event takes place but the
exigibility to tax of a deemed sale of goods in a composite
contract.

52. Prior to Forty-sixth Amendment in the Constitution, levy F
of sales tax on the sale of goods involved in the execution of
the works contract was held to be unconstitutional in Gannon
Dunkerley-13. That was a case where the assessee (Gannon
Dunkerley) was carrying on business as engineers and
contractors. Its business consisted mainly of execution of G
contracts for construction of buildings, bridges, dams, roads
and structural contracts of all kinds. During the assessment year
under consideration, the return filed by the assessee showed
as many as 47 contracts most of which were building contracts
which were executed by it. From the total of the amount which
H
718 SUPREME COURT REPORTS (2013] 17 S.C.R.

A the assessee received in respect of sanitary contracts and
other contracts 20 per cent and 30 per cent respectively were
deducted for labour and the balance was taken as the turnover
of the assessee for the assessment year in question: Sales tax
was levied on the said balance treating it as taxable turnover
B under the Madras General Sales Tax Act, 1939. Assessee
questioned the levy of sales tax on the ground that there was
no sale of goods as understood in India and, therefore, no sales
tax could be levied on any portion of the amount which was
received by the assessee from the persons for whose benefit
c it had constructed buildings. The Madras High Court concluded
that the transactions in question were not contracts for sale of
goods as defined under the provisions of the Sale of Goods
Act, 1930 which was in force on the date on which the
Constitution came into force and, therefore, the assessee was
not liable to pay sales tax on the amounts received by it from
0
the persons for whom it had constructed buildings during the
year of assessment. It is from this judgment that the matter
reached this Court. The Constitution Bench of this Court held
that in a building contract where the agreement between the
parties was that the contractor should construct the building
E according to the specifications contained in the agreement and
in consideration received payment as provided therein, there
was neither a contract to sell the materials used in the
construction nor the property passed therein as movables. It
was held that in a building contract which was one (entire and
F indivisible) there was no sale of goods and it was not within
the competence of the Provincial State Legislature to impose
tax on the supply of the materials used in such a contract
treating it as a sale. The Constitution Bench said," ........when
the work to be executed is, as in the present case, a house,
G the construction imbedded on the land becomes an accretion
to it on the principle quicquid plantatur solo, solo cedit, and it
vests in the other party not as a result of the contract but as the
owner of the land: Vide Hudson on Building Contracts, 7th Edn.,
p. 386 ......... " It was further stated, " ..... that exception does not
H apply to buildings which are constructed in execution of a works
M/S. LARSEN & TOUBRO LIMITED v. STATE OF 719
KARNATAKA [R.M. LODHA, J.]
contract,, and the law with reference to them is that the title to A
the same passes to the owner of the land as an accretion
thereto. Accordingly, there can be no question of title to the
materials passing as movables in favour of the other party to
the contract.. ..... "
B
53. In Gannon Ounkerley-13, this Court held that in a
building contract which was one, entirely indivisible, there was
no sale of goods and it was not within the competence of the
provincial State legislature to impose tax on the supply of
materials used in such a contract treating it as a sale. The C
above statement was founded on the premise that the works
contract was a composite contract which is inseparable and
indivisible. Entry 48 of List II of Schedule Seven of the
Government of India Act, 1935 was under consideration before
tl:lis Court in Gannon Dl!nkerley-13. It is observed that the
,expression "sale of goods" in that entry has the same meaning D
as the said expression had in the Sale of Goods Act, 1930. In
other words, the essential ingredients of sale of goods are (i)
an agreement to sell movables for a price and (ii) property
passing therein pursuant to that agreement.
E
54. The problems connected with powers of States to levy
tax, inter alia, on goods involved in execution of works contract
following Gannon Ounkerley-13 was elaborately examined by
the Law Commission of India. In its 61st Report, Chapter 1A,
the Law Commission specifically examined the taxability of F
works contract. The Law Commission noted the essential
nature and features of the building contracts and the difference
between contract of works and contract for sale. It examined
the question whether the power to tax indivisible contracts of
works should be conferred on the States. The Law Commission G
suggested three alternatives (a) amendment in the State List,
Entry 54, or (b) adding a fresh entry in the State List, or (c)
insertion in Article 366 a wide definition of "sale" so as to
include works contract. It· preferred the last one, as, in its
opinion, this would avoid multiple amendments.
J H
720 SUPREME COURT REPORTS (2013] 17 S.C.R.

A 55. Having regard to the above recommendation of the
Law Commission, the Constitution Bill No.52 of 1981 was
introduced in the Parliament.*
*The relevant portion of statement of objects and reasons reads :
"STATEMENT OF OBJECTS AND REASONS
B Sales tax laws enacted in pursuance of the Government of India Act, 1935 as
also the laws relating to sales tax passed after the coming into force of
the Constitution proceeded on the footing that the expression "sate of
goods", having regard to the rule as to broad interpretation of entries in
the legislative lists, would be given a wider connotation. However, in
Gannon Dunkerley's case (A.l.R. 1958 S.C. 560), the Supreme Court held
c that the expression "sale of goods" as used in the entries in the Seventh
Schedule to the Constitution has the same meaning as in the Sale of
Goods Act, 1930. This decision related to works contracts.
2. By a series of subsequent decisions, the Supreme Court has, on the basis
of the decision in Gannon Dunkerley's case, held various other
transactions which resemble, in substance, transactions by way of
sales, to be not liable to sales tax. As a result of these decisions, a
D transaction, in order to be subject to the levy of sales tax under entry 92A
of the Union List or entry 54 of the State List, should have the following
ingredients, namely, parties competent to contract, mutual assent and
transfer of property in goods from one of the parties to the contract to
the other party thereto for a price.
5. The various problems connected with the power of the States to levy a
E tax on the sale of goods and with the Central Sales Tax Act, 1956 were
referred to the Law Commission of India. The Commission considered
these matters in their Sixty-first Report and, recommended, inter alia,
certain amendments in the Constitution if as a matter of administrative
policy it is decided to levy tax on transactions of the nature mentioned in
the preceding paragraphs.
F 9. It is, therefore, proposed to suitably amend the Constitution to include in
article 366 a definition of "tax on the sale or purchase of goods" by inserting
a new clause (29A). The definition would specifically include within
the scope of that expression tax on---
(i) transfer for consideration of controlled commodities;
(ii) the transfer of property in goods involved in the execution of a works contract;
G (iii) delivery of goods on hire-purchase or any system of payment by
instalments;
(iv) transfer of the right to use any goods for any purpose for cash, deferred
payment or other valuable consideration;
(v) the supply of goods by an unincorporated association or body of persons
to a member thereof for cash, deferred payment or other valuable
H consideration;
M/S. LARSEN & TOUBRO LIMITED v. STATE OF 721
KARNATAKA [R.M. LODHA, J.]
56. The Parliament then enacted the Constitution (Forty- A
sixth Amendment) Act, 1982 which receiy~d the assent of the
President on 02.02.1983. Accordingly, clause 29-A was
inserted in Article 366 of the Constitution which is set out as
below.**
B
(vi) the supply, by way of or as part of any service, of food or any drink for
cash, deferred payment or other valuable consideration.
12. Clause (3) of article 286 is proposed to be amended to enable Pa~iament
to specify, by law, restrictions and conditions in regard to the system of
levy, rates and other incidents of the tax on the transfer of goods involved
in the execution of a works contract, on the delivery of goods on hire- C
purchase or any system of payment by instalments and on the right to
use any goods.
13. The proposed amendments would help in the augmentation of the
State revenues to a considerable extent. Clause 6 of the Bill seeks to
validate laws levying tax on the supply of food or drink for consideration
and also the collection or recoveries made by way of tax under any such D
law. However, no sales tax will be payable on food or drink supplied by
a hotelier to a person lodged in the hotel during the period from the date
of the judgment in the Associated Hotels of India case and the
commencement of the present Amendment Act if the conditions mentioned
in sub-clause (2) of clause 6 of the Bill are satisfied. In the case of food
or drink supplied by restaurants this relief will be available only in respect
of the period after the date of judgment in the Northern India Caterers E
(India) Limited case and the commencement of the present Amendment
Ad."
-(29-A) "tax on the sale or purchase of goods" includes-
(a) a tax on the transfer, otheiwise than in pursuance of a contract, of property
in any goods for cash, deferred payment or other valuable consideration;
(b) a tax on the transfer of property in goods (whether as goods or in some F
other form) involved in the execution of a works contract;
(c) a tax on the delivery of goods on hire-purchase or any system of payment
by instalments;
(d) a tax on the transfer of the right to use any goods for any purpose (whether
or not for a specified period) for cash, deferred payment or other valuable
consideration; G
(e) a tax on the supply of goods by any unincorporated association or body of
persons to a member thereof for cash, deferred payment or other valuable
consideration;
(f) a tax on 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
H
722 SUPREME COURT REPORTS (2013) 17 S.C.R.

57. Following the above amendment in the Constitution,
the sales tax legislations in various States were amended and
provisions were made for imposition of sales tax in relation to
works contract. The constitutional validity of the Forty-sixth
Amendment by which the legislatures of the States were
empowered to levy sales tax on certain transactions described
in clauses (a) to (f) of clause 29-A of Article 366 of the
Constitution as well as the amendments made in the State
legislations were challenged in Builders' Association•. The
Constitution Bench of this Court upheld the constitutionality of
the Forty-sixth Amendment. The Court observed that the object
of the new definition introduced in clause 29-A of Article 366
of the Constitution was to enlarge the scope of the expression
"tax of sale or purchase of goods" wherever it occurs in the
Constitution so that it may include within its scope any transfer,
delivery or supply of goods that may take place under any of
the transactions referred to in sub-clauses (a) to (f). The
Constitution Bench*** explained that clause 29-A refers to a tax

and such transfer, delivery or supply of any goods shall be deemed to be
a sale of those goods by the person making the transfer, delivery or supply
and a purchase of those goods by the person to whom such transfer,
delivery or supply is made;' .
... 36 ......... After the 46th Amendment the works contract which was an
indivisible one is by a legal fiction altered into a contract which is divisible
into one for sale of goods and the other for supply of labour and services.
After the 46th Amendment, it has become possible for the States to levy
sales tax on the value of goods involved in a works contract in the same
way in which the sales tax was leviable on the price of the goods and
materials supplied in a building contract which had been entered into in
two distinct and separate parts as stated above ...... .
39. In view of the foregoing statements with regard to the passing of the property
in goods which are involved in works contract and the legal fiction created
by clause (29-A) of Article 366 of the Constitution it is difficult to agree with
the contention of the States that the properties that are transferred to the
owner in the execution of a works contract are not the goods involved in
the execution of the works contract, but a conglomerate, that is the entire
building that is actually constructed. Alter the 46th Amendment it is not
possible to accede to the plea of the States that what is transferred in a
works contract is the right in the immovable property.
40 .......... The 46th Amendment does no more than making it possible for the
M/S. LARSEN & TOUBRO LIMITED v. STATE OF 723
KARNATAKA [R.M. LODHA, J.]
on the transfer of property in goods (whether as goods or in A
some other form) involved in the execution of a works contract.
The emphasis is on the.transfer of property in goods - whether
as goods or in some other form. A transfer of property in goods
under sub-clause (b) of clause 29-A is deemed to be a sale of
the goods involved in the execution of a works contract by the B
person making the transfer and a purchase of those goods by
a person to whom such transfer was made.

58. Article 286 puts certain restrictions upon the power of
the State to enact laws concerning imposition of sales tax. It
lays down that no law of a State shall impose or authorise the
c
imposition of a tax on the sale or purchase of goods where such
sale or purchase takes place (a) outside the State, or (b) in the
course of import of the goods into, or export of the goods out
of the territory of India. Sub-clause (2) of Article 286 enables
the Parliament to enact law formulating principles for D
determining when a sale or purchase of goods takes place in
any of the ways mentioned in clause (1 ). As regards inter-state
trade and commerce, clause (3) puts two restrictions. It provides

States to levy sales tax on the price of goods and materials used in works E
contracts as if there was a sale of such goods and materials. We do not
accept the argument that sub-clause (b) of Article 366(29-A) should be read
as being equivalent to a separate entry in List II of the Seventh Schedule
to the Constitution enabling the States to levy tax on sales and purchases
independent of Entry 54 thereof. As the Constitution exists today the power
of the States to levy taxes on sales and purchases of goods induding the
"deemed" sales and purchases of goods under clause (29-A) of Article F
366 is to be found only in Entry 54 and not outside it... ..
41 .......... The case-book is full of the illustrations of the infinite variety of
the manifestation of 'works contracts'. Whatever might be the situational
differences of individual cases, the constitutional limitations on the taxing
power of the State as are applicable to 'works contracts' represented by
"building contracts" in the context of the expanded concept of "tax on the G
sale or purchase of goods" as con.stitutionally defined under Article 366(29-
A), would equally apply to other species of 'works contracts' with the
requisite situational modifications.
42. The constitutional amendment in Article 366(29-A) read with the
relevant taxation entries has enabled the State to exert its taxing power in
an important area of social and economic life of the community .......... H
724 SUPREME COURT REPORTS [2013) 17 S.C.R.

A that any law of a State shall, insofar as it imposes, or authorises
the imposition of (a) a tax on the sale or purchase of goods
declared by Parliament by law to be of special importance in
inter-state trade or commerce; (b) a tax on the sale or purchase
of goods, being a tax of the nature referred to in sub-clause
B (b), sub-clause (c) and sub-clause (d) of clause 29-A of Article
366, be subject to such restrictions and conditions in regard
to the system of levy, rates and other incidents of tax as the
Parliament may by law specify. Clause (3) was substituted by
Constitution Forty-sixth Amendment Act, 1982 with effect from
c 02.02.1983.
59. Clause 29-A was inserted in Article 366 by the Forty-
sixth Amendment with effect from 02.02.1983. Entry 54 of List
II (State List) enables the State to make laws relating to taxes
on the sale or purchase of goods other than the newspapers,
D subject to the provisions of Entry 92-A of List I. Entry 63 of List
II enables the States to provide rates of stamp duty in respect
of documents other than those specified in provisions of List I
with regard to the rates of stamp duty. Entry 92-A of List I deals
with taxes on the sale or purchase of goods other than
E newspapers where such sale or purchase takes place in the
course of inter-state trade or commerce. Entry 6 of List Ill deals
with the subjects, "transfer of property other than the agricultural
land; registration of deeds and documents".

60. It is important to ascertain the meaning of sub-clause
'F (b) of clause 29-A of Article 366 of the Constitution. As the very
title of Article 366 shows, it is the definition clause. It starts by
saying that in the Constitution unless the context otherwise
requires the expressions defined in that article shall have the
meanings respectively assigned to them in the article. The
G definition of expression "tax on sale or purchase of the goods"
is contained in clause (29-A). If the first part of clause 29-A is
read with sub-clause (b) along with latter part of this clause, it
reads like this: tax on the sale or purchaser of the goods"
includes a tax on the transfer of property in goods (whether as
H
' '

M/S. LARSEN & TOUBRO LIMITED v. STATE OF 725
KARNATAKA [R.M. LODHA, J.]
goods or in l!ome other form) involved in the execution of a A
works contract and such transfer, delivery or supply of any
goods shall be deemed to be a sale of those goods by the
person making the transfer, delivery or supply and a purchase
of those goods by the person to whom such transfer, delivery
or supply is made. The definition of "goods" in clause 12 is B
inclusive. It includes all materials, commodities and articles. The
expression, 'goods' has a broader meaning than merchandise.
Chattels or movables are goods within the meaning of clause
12. Sub-clause (b) refers to transfer of property in goods
(whether as goods or in some other form) involved in the c
execution of a works contract. The expression "in some other .
form" in the bracket is of utmost significance as by this
expression the ordinary understanding of the term 'goods' has
been enlarged by bringing within its fold goods in a form other
than goods. Goods in some other form would thus mean goods
0
which have ceased·to.be chattels or movables or merchandise
and become attached or embedded to earth. In other words,
goods which have by incorporation become part of immovable
property are deemed as goods. The definition of 'tax on the
sale or purchase of goods' includes a tax on the transfer or
property in the goods as goods or which have lost its form; as E
goods and have acquired some other form involved in the
execution of a works contract:

61. Viewed thus, a transfer of property in goods under
clause 29-A(b) of Article 366 is deemed to be a sale of the F
goods involved in the execution of a works contract by the
person making the transfer and the purchase of those goods
by the pers.on to whom such transfer is made.

62. The States have now been conferred with the power G
to tax indivisible contracts of works. This has been done by
enlarging the scope of "tax on sale or purchase of goods"
wherever it occurs in the Constitution. Accordingly, the
expression "tax on the sale or purchase of goods" in Entry 54
of List II of Seventh Schedule when read with the definition
H
726 SUPREME COURT REPORTS [2013) 17 S.C.R.

A clause 29-A, 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. The taxable event is deemed
sale.

B 63. Gannon Dunkerley-13 and few other decisions following
Gannon Dunkerley-/3wherein the expression "sale" was given
restricted meaning by adopting the definition of the word "sale"
contained in the Sale of Goods Act has been undone by the
Forty-sixth Constitutional Amendment so as to include works
contract. The meaning of sub-clause (b) of clause 29-A of
C Article 366 of the Constitution also stands settled by the
Constitution Bench of this Court in Builders' Association4. As
• a result of clause 29-A of Article 366, tax oi1 the sale or purchase
of goods may include a tax on the transfer in goods as goods
or in a form other than goods involved in the execution of the
D works contract. It is open to the States to divide the works
. contract into two separate contracts by legal fiction: (i) contract
for sale of goods involved in the·works contract and (ii) for
supply of labour and service. By the Forty-sixth Amendment,
States have been empowered to bifurcate the contract and to
E levy sales tax on the value of the material in the execution of
· the works contract.

64. Whether contract involved a dominant intention to
transfer the property in goods, in our view, is not at all material.
F It is not necessary to ascertain what is the dominant intention
of the contract. Even if the dominant intention of the contract is
not to transfer the property in goods an&rather it is the 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
G the materials used in such contract if it otherwise has elements
of works contract. The view taken by a two-Judge Bench of this
Court in Rainbow Colour Lab 16 that the division of the contract
after Forty-sixth Amendment can be made only if the works
contract involved a dominant intention to transfer the property
H in goods and not in contracts where the transfe~ of property
M/S. LARSEN & TOUBRO LIMITED v. STATE OF 727
KARNATAKA [R.M. LODHA, J.]
takes place as an incident of contract of service is no longer A
good law, Rainbow Colour Lab16 has been expressly overruled
by a three-Judge Bench in Associated Cement15.

65. Although, in Bharat Sanchar5; the Court was
concerned with sub-clause (d) of clause 29-A of Article 366 but B
while dealing with the question as tci whether the nature of
transaction by which mobile phone connections are enjoyed is
a sale or service or both, the three-Judge Bench did consider
the scope of definition ill clause 29-A of Article 366. With
reference to sub-clause (b) it said:" ....... sub-clause (b) covers C
cases relating to works contract. This was the particular fact
situation which the Court was faced with in Gannon Dunkertey-
13 and which the Court had held was not a sale. The effect in
law of a transfer of property in goods involved in the execution
of the works contract was by this amendment deemed to be a
sale. To that extent the decl'Sion in Gannon Dunkerley-13was D
directly overcome". It then went on to say that all the sub-
'. clauses of Article 366(29-A) serve to bring transactions where
essential ingredients of~ 'sale' as defined in the Sale of Goods
Act, 1930 are absent, within the ambit of purchase or sale for
the purposes of levy of sales tax. E

66. It then clarified that Gannon Dunkerley-13survive.d the
Fo·rty-sixth Constitutional Amendment in two respects. First, with
regard to the definition of "sale:' for the purposes of the
Constitution in general and for the purposes of Entry 54 of List F
II in particular except to the extent that the cla.uses in Article
366(29-A) operate and second, the dominant nature test would
be confined to a CO(Tlposite transaction not covered by Article
366 (29-A). In other words, in Bharat Sanchar5, this Court
reiterated what was stated by this Court in Associated
Cement15 that dominant nature test h.as no application to .a . G ·
composite transaction covered by the clauses of Article
366(29-A). Leaving no ambiguity, it said that after the Forty-
sixth Amendment, the sale element of those contracts which are
covered by six sub-clauses of clause 29-A of Article 366 are H
728 SUPREME COURT REPORTS (2013] 17 S.C.R.

A separable and may be subjected to sales tax by the States
under Entry 54 of List II and there is no question of the dominant
nature test applying.

67. In view of the statement of law in Associated Cement1 5
B and Bharat Sanchal°, the argument advanced on behalf of the
appellants that dominant nature test must be applied to find out
the true nature of transaction as to whether there is a contract
for sale of goods or the contract of service in a composite
transaction covered by the clauses of Article 366 (29-A) has
no merit and the same is rejected.
c
68. IA Gannon Dunkerley-11 11 , this Court, inter alia,
established the five following propositions : (i) as a result of
Forty-sixth Amendment the contract which was single and
indivisible has been altered by a legal fiction into a contract
D which is divisible into one for sale of goods and the other for
supply of labour and service and as a result of such contract
which was single and indivisible has been brought on par with
a contract containing two separate agreements; (ii) if the legal
fiction introduced by Article 366 (29-A)(b) is carried to its logical
E end, it follows that even in a single and indivisible works contract
there is a deemed sale of the goods which are involved in the
execution of a works contract. Such a deemed sale has all the
incidents of the sale of 'goods involved in the execution of a
works contract where the contract is divisible into one for sale
F of goods and the other for supply of labour and services; (iii)
in view of sub-clause (b) of clause 29-A of Article 366, the State
legislatures are competent to impose tax on the transfer of
property in goods involved in the execution of works contract.
Under Article 286(3)(b), Parliament has been empowered to
G make a law specifying restrictions and conditions in regard to
the system of levy, rates or incidents of such tax. This does not
mean that the legislative power of the State cannot be exercised
till the enactment of the law under Article 286(3)(b) by the
Parliament. It only means that in the event of law having been
made by Parliament under Article 286(3)(b), the exercise of the
H
MIS. LARSEN & TOUBRO LIMITED v. STATE OF 729
KARNATAKA [R.M. LODHA, J.]

legislative power of the State under Entry 54 in List II to impose A
tax of the nature referred to in sub-clauses (b), (c) and (d) of
clause· (29~A) of Article 366 would be subject to restrictions and
conditions. in regard to the system of levy, rates and other
incidents of tax contained in the said law; (iv) while enacting
law imposing a tax on sale pr purchase of goods under Eritry B
54 of the State List read with Article 366 (29-A)(b), it is
permissible for the State legislature to make a law imposing
tax on such a deemed sale which constitutes a sale in the
course of the inter-state trade or commerce under Section 3
of the Central Sales Tax Act or outside under Section 4 of the c
Central Sales Tax Act or sale in the course of import or export
under Section 5 of the Central Sales Tax Act; and (v) measure
for the levy of tax contemplated by Article 366 (29-A)(b) is the
value of the goods involved in the execution of a works contract.
Though the tax is imposed on the transfer of property in goods 0
involved in the execution of a works contract, the measure for
levy of such imposition is the value of the goods involved in the
execution of a works contract. Since, the taxable event is the
transfer of property in goods involved in the execution of a works
contrac;t and the said transfer of property in such goods takes E
place when the goods are incorporated in the works, 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 and not the cost of
acquisition of the goods by the contractor.
F
69. In Gannon Dunker/ey-1/ , sub-section (3) of Section
11

5 of the Rajasthan Sales Tax Act and Rule 29(2)(1) of the
Rajasthan Sales Tax Rules were declared as unconstitutional
and void. It was so declared because the Court found that
Section 5(3) transgressed the limits of 'the legislative power G
conferred on the State legislature under Entry 54 of the State
List. However, insofar as legal position after Forty-si_xth
Amendment is concerned, Gannon Dunkerley-1111 hofos
unambiguously that the States have now legislative power to
impose tax on transfer of property in goods as goods or in H
730 SUPREME COURT REPORTS [2013] 17 S.C.R.

A some other .form in the execution of works contract.

70. The Forty-sixth Amendment leaves no manner of doubt
that the States have power to bifurcate the contract and levy:
sales tax on Jhe value of the material involved in the execution;
B of the works contract. The States are now empowered to levy'
sales tax on the material used in such contract. In other-words,'
clause 29-A of Article 366 empowers the States to levy tax on
the deemed sale.

71. Now, if by legal fiction provided in clause (29-A)(b) of
C Article 366, the works contract becomes separable and
divisible, one for the materials and the other for services and
for the work done, whatever has been said by·this Court in
Gannon Dunkerley-13 with regard to the definition of works
contract in Section 2(i) of the Madras General Sales Tax Act
D pales into insignificance insofar as ambit and scope of the term
"works contract" within the meaning of Article 366(29-A) is
concerned. To say that insertion of clause (29-A) in Article 366
has not undone Gannon Dunkerley-13 in .any manner, in our
view, is not correct. The narrow meaning given to the term
E ''works contract" in Gannon Dunkerley-13 now no longer sur.iives.

72. There is no doubt that to attract Article 366(29-A)(b)
there has to be a works contract but then what is its meaning.
The term ''works contract" needs to be understood in a manner
that the Parliament had in its view at the time of Forty-sixth
.. F Amendment and which is more appropriate to Article 366(29-
A)(b).

73. The. ordinary dictionary meaning of the word "work"
means a structure or apparatus of some kind; architecture or '
G engineering structure, a building edifice. When it is used in the
plural, i.e., as works, it means architectural or engineering
operations, a fortified building, a defensive structure, fortification
or any of the several parts of such structures. In Webster
Comprehensive Dictionary, International Edition the term ''work"
H is stated to be, ......... (2) that upon which labor is expended;
M/S. LARSEN & TOUBRO LIMITED v. STATE OF 731
KARNATAKA [R.M. LODHA, J.]
an undertaking task. (3) that which is produced by or as by A
labor, specifically, an engineering structure; ............ In the same
dictionary, the term "works" is stated as a manufacturing
establishrr:ient including buildings and equipment.
'
74. In Radha Raman 21 , Allahabad High Court stated B
(although in the context of Section 40 of the' tand Acquisition
Act, 1894) that the "work" has a very wide meaning. It is really
used in ti.vo·senses of bestowing labour and that upon which
labour has been bestowed. 'When used in plural the word
certainly mearis some outstanding or important result of the
labour that has been bestowed and large industrial and C
scientific establishments are called "works".

75. Hudson's 'Building En9'neering.:.Contracts', Eleventh
edition, Volume 1', for the purposes of that book, starts by saying
that a building or engiraeering contract may be defined as an D
agreement under which a person (called builder or contractor)
undertakes for reward to carry out for another (building owner
or employer), works of building or civil engineering character.
It continues to say that in the typical case, the work will be
carried out upon the land of the employer or building owner, E
though in some special cases obligations to build may arise
by contract where this is not so, for example, under building
leases and contracts for the sale of land with a house in the
course of erection upon it. The above statement by Hudson
indicates that in a typical case work (structure, building etc.) will F
be carried out upon the land of the employer or building owner
though in some special cases an obligation to build may arise
by contract where this is not so. Hudson gives an example of
building leases and contracts for the sale of land with a house
in the course of erection upon it.
G
76. In our opinion, the term 'works contract' in Article
366(29-A)(b) is amply wide and cannot be confined to a
particular understanding of the term or to a particular form. The

21. Radha Ri!man v. State of Uttar Pradesh & Ors.; [AIR (1954) Allahabad 700]. H
732 SUPREME COURT REPORTS [2013] 17 S.C.R.

'.
A term encompasses a wide range and many varieties of contract.
The Parliament had such wide meaning of "works contract" in
its view at the time of Forty-sixth Amendment. The object of
insertion of claui;;e 29-A in Article 366 was to enlarge the scope
of the expresi;ion "tax of sale or purchase of goods" and
B overcome Gannon Dunkerley-13 • Seen thus, even if in a
contract, besides the obligations of supply of goods and
materials and performance of labour and services, some
additional obligations are imposed, such contract does not
cease to be works contract. The additional obligations in the
c contract would not alter the nature of contract so long as the
contract provides for a contract for works and satisfies the
primary description bf works contract. Once the characteristics
or elements of works contract are satisfied in a contract then
irrespective of additional obligations, such contract would be
covered by the term 'works contract'. Nothing in Article 366(29-
0
A)(b) limits the term "works contract" to contract for labour and
service only. Learned Advocate General for Maharashtra was
right in his submission that the term "works contract" cannot be
confined to a contract to provide labour and services but is a
contract for undertaking or bringing into existence some
E "works". We are also in agreement with the submission of Mr.
K.N. Bhat that 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 above. The Parliament had all genre of works contract
F in view when clause 29-A was inserted in Article 366.

77. The difference between a contract for work (or service)
and a contract for sale (of goods) has come up for consideration
before this Court on more than one occasion. Before we
G consider some of the decisions of this Court in this regard, it
is of interest to refer to two old decisions of English courts. In
Lee22 , it was laid down that if a contract would result in the
transaction of property in goods from one party to another then
it must be a contract of sale.
H 22. Lee v. Griffin; [(1861) 1 B. & S. 272].
M/S. LARSEN & TOUBRO LIMITED v. STATE OF 733
KARNATAKA [R.M. LODHA, J.]

78. However, the statement of law in Lee 21 did not find A
favour in Robinson 23 where it was held that if the substance of
the contract required skill and labour for the producti9n of the
articles then it would not make any difference that there would
pass some materials in addition-to the skill.
B
79. In Chandra Bhan Gosain 24 , this Court exposited that
for finding out whether a contract is one of work done and
materials found or one for sal~ of goods depends on its
essence. If not of its essence that a chattel should be produced
and transferred as a chattel, then it may be a contract for work C
done and materials found and not a contract for sale of goods.

80. In Purshottam Premji 9 , the difference between a
contract for work and a contract for sale was explained like this:
The primary difference between a contract for work or service
and a contract for sale of goods is that in the former there is in D
the person performing work or rendering service no property
in the thing produced as a whole notwithstanding that a part or
even the whole of the materials used by him may have been
its property. In a case of contract for sale, the thing produced
as a whole has individual existence as the sole property of the E
party who produced it at some time before delivery and the
property therein passes only under the contract relating thereto
to other party for price. Mere transfer of property in goods used
in the performance of the contract is not sufficient; to constitute
a sale there must be an agreement.express or implied relating F
to the sale of goods and completion of the agreement by
passing of title in the very goods contracted to be sold.
Ultimately the true effect of an accretion made pursuant to a
contract has to be judged, not by an artificial rule that the
accretion may be presumed to have become by virtue of affixing G
to a chattel of part of that chattel but from the intention of the
parties to the contract.

22. Robinson v. Graves; [(1935) 1 KB 579]
23. Chandra Bhan Gosain v. State of Orissa and Others; [(1964) 2 SCR 879 H
734 SUPREME COURT REPORTS [2013) 17 S.C.R.

A 81. The factors highlighted in Purshottam Premji9 which
distinguish a contract for work from a contract for sale are
relevant but not exhaustive. It is not correct to say that these
factors should be considered as the only factors to differentiate
a works contract and a contract for sale. In our view, there are
s not and there cannot be absolute tests to distinguish a sale and
works contract.

82. This Court in Associated Hotels 25 , stated that the
determination as to whether the contract involved in a
transaction constitutes a contract of sale or a contract of work
C or service depends in each case upon its facts and
circumstances. Mere passing of property in article or
commodity during the course of the performance of the
transaction does not render it a transaction of sale. For even
in a contract purely of work or service, it is possible that articles
D may have to be used by the person executiRg the work and
property in such cases articles or materials where passed to
the other party. That would not necessarily convert the contract
into one of sale of those materials. It is stated in Associated
Hotels25 that in every case the Court will have to find out what
E is the primary object of the transaction and the intention of the
parties while entering upon it. It has been clarified that in some
cases it may be that even while entering into a contract of work
or even service, parties might enter into separate agreements,
one of work and service and the other of sale and purchase of
F materials to be used in the course of executing the work or
performing the service. But, then in such cases the transaction
will not be one and indivisible but will fall into the two separate
agreements one of work or service and the other of sale.

G 83. Halsbury's Laws of England, Third Edition, Vol. 41,
para 603, while distinguishing a contract of sale from a contract
for work and labour, has highlighted the test thus: whether or
not the work and labour bestowed end in anything that can

25. The State of Punjab v. Mis. Associated Hotels of India Ltd.; [(1972) 1 SCC
H 472].
M/S. LARSEN & TOUBRO LIMITED v. STATE OF 735
KARNATAKA [R.M. LODHA, J.]
properly become the subject of sale; neither the ownership of A
materials, nor the value of the skill and labour as compared with
the value of the materials, is conclusive, although such matters
may be taken into consideration in determining, in the
circumstances of a part_icular case, whether the contract is in
substance one for work and labour or one for the sale of a B
chattel.

84. In B.C. Kame6 , the Court following Associated Hotels24
observed that determination of the question whether a contract
is a contract for 'work and labour' or a contract for 'sale' was
not free from difficulty, particularly, when the contract is a C
composite one. Having said that the Court applied the test
stated in Halsbury's Laws of England.

85. In Hindustan Aeronautics 26 , the Court noted the
difference between contract for service and contract for sale of D
goods in these words:

"13. It is well settled that the difference between contract
of service and contract for sale of goods, is, that in the
. former, there is in the person performing work or rendering E
service no property in the things produced as a whole
notwithstanding that a part or even the whole of materials
used by him had been his property. In the case of a
contract for sale, the thing produced as a whole has
individual existence as the sole property of the party who
produced it some time before delivery and the property F
therein passed only under the contract relating thereto to
the other party for price. It is necessary, therefore, in every
case for the courts to find out whether in essence there
was any agreement to work for a stipulated
consideration ............ " G

86. The Court went on to say further in Hindustan

26. Hindustan Aeronautics Lid. v. State of Kamataka; [(1984) 1
sec 706J. H
736 SUPREME COURT REPORTS [2013] 17 S.C.R.

A Aeronautics25 as follows;

"18. It cannot be said as a general proposition that in
every case of works contract, there is necessarily implied
the sale of the component parts which go to make up the
repair. That question would naturally depend upon the facts
B
and circumstances of each case. Mere passing of property
in an article or commodity during the course of
performance of the transaction in question does not render
the transaction to be transaction of sale. Even in a contract
purely of works or service, it is possible that articles may
c have to be used by the person executing the work, and
property in such articles or materials may pass to the other
party. That would not necessarily convert the contract into
one of sale of those materials ...... "

D 87. In Kone Elevators 27 , the Court again highlighted the
tests to distinguish a works contract and a contract for sale of
goods. The Court said;

"5. It can be treated as well settled that there is no standard
formula by which one can distinguish a "contract for sale"
E
from a "works contract". The question is largely one of fact
depending upon the terms of the contract including the
nature of the obligations to be discharged thereunder and
the surrounding circumstances. If the intention is to transfer
for a price a chattel in which the transferee had no previous
F property, then the contract is a contract for sale. Ultimately,
the true effect of an accretion made pursuant to a contract
has to be judged not by artificial rules but from the intention
of the parties to the contract. In a "contract of sale'', the
main object is the transfer of property and delivery of
G possession of the property, whereas the main object in a
"contract for work" is not the transfer of the property but it
is one for work and labour. Another test often to be applied
is: when and how the property of the dealer in such a

H 27. State of A.P. v. Kone Elevators (India) Ltd.; [(2005) 3 SCC 389]
MIS. LARSEN & TOUBRO LIMITED v. STATE OF 737
KARNATAKA [R.M. LODHA, J.]
transaction passes to the customer: is it by transfer at the A
time of delivery of the finished article as a chattel or by
accession during the procession of work on fusion to the
movable property of the customer? If it is the former, it is
a "sale"; if it is the latter, it is a "works contract''. Therefore,
in judging whether the contract is for a "sale" or for "work B
and labour'', the essence of the contract or the reality of
the transaction as a whole has to be taken into
consideration. The predominant object of the contract, the
circumstances of the case and the custom of the trade
provide a guide in deciding whether transaction is a "sale" c
or a "works contract''. Essentially, the question is of
interpretation of the "contract". It is settled law that the
substance and not the form of the contract is material in
determining the nature of transaction. No definite rule can
be formulated to determine the question as to whether a 0
particular given contract is a contract for sale of goods or
is a works contract. Ultimately, the terms of a given
contract would be determinative of the nature of the
transaction, whether it is a "sale" or a "works contracf'.
Therefore, this question has to be ascertained on facts of E
each case, on proper construction of terms and conditions
· of the contract between the parties."

88. In Hindustan Shipyard7, this Court stated that it was
difficult to lay down an absolute rule to distinguish a contract
for sale and a contract for labour. The question under F
consideration in that case was whether the transactions involved
in manufacture and supply of ships by Hindustan Shipyard to
its customers are "sale" as defined in clause (n) of Section 2
of Andhra Pradesh General Sales Tax Act, 1957 or a works,
contract as defined in clause (t) of Section 2 of that Act. While G
dealing with the above question, the Court in para 6 stated,
"the distinction between a contract of sale and works contract
is not free from difficulty and has been the subject matter of
several judicial decisions. No straitjacket formula can be made
available nor can such quick-witted tests be devised as would H
738 SUPREME COURT REPORTS [2013] 17 S.C.R.

\
A be infallible. It is all ~ question of determining the intention of
the parties by culling out the same on an overall reading of the
several terms and conditions of a contract. ...... " The Court did
note the observations made in Variety Body Builders28, that
there is no standard formula by which one can distinguish a
B contract of sale from a contract for work and labour. There may
be many common features in both the contracts, some neutral
in a particular contract, and yet certain clinching in a given case
may fortify conclusion one way or the other.

89. The Court then analysed the recitals and terms and
C conditions of the contract and also took into consideration para
603 of Halsbury's Laws of England, Fourth Edition, Volume 41,
Benjamin's Sale of Goods, Fourth Edition, Para 1.042 and
Pollock and Mulla on Sale of Goods (1990, Fifth Edition, P~ge
53] and summed up the legal position in sub-para 2 and slib-
0 para 3 of para 14 (pgs. 591-592) a::; under :
"(2) Transfer of property of goods for a price is the linchpin
of the definition of sale. Whether a particular contract is
one of sale of goods or for work and labour depends upon
E the main object of the parties found out from an overview
of the terms of the contract, the circumstances of the
transactions and the custom of the trade. It is the
substance of the contract document/s, and not merely the
form, which has to be looked into. The court may form an
F opinion that the contract is one whose main object is
transfer of property in a. chattel as a chattel to the buyer,
though some work may be required to be done under the
contract as ancillary or incidental to the sale, then it is a.
sale. If the primary object of the contract is the carrying out
of work by bestowal of labour and services and materials
G
are incidentally used in execution of such work then the
contract is one for work and labour.
I
(3) If the thing to be delivered has any individu:=tl existence
28. State of Gujarat (Commissioner of Sales Tax, Ahmedabad} v. Mis.Variety'
H Body Builders; [(1976) 3 SCC 500] ·
M/S. LARSEN & TOUBRO LIMITED v. STATE OF 739
KARNATAKA [R.M. LODHA, J.]
before the delivery as the sole property of the party who A
is to deliver it, then it is a sale. If 'A' may transfer property
for a price in a thing in which 'B' had no previous property
then the contract is a contract for sale. On the other hand
where the main object of work undertaken by the payee
of the price is not the transfer of a chattel qua chattel, the B
contract is one for work and labour."

90. The Court in HindZlstan Shipyard7 also set out three
categories: (a) the contract may be for work to be done, for
remuneration and for supply of materials used in the ~ecution C
of work for a price, (b) contract for work in which the use of the
materials is accessory or incidental to the execution of the work
and (c) contract for supply of goods where some work is
required to be done as inciden,tal to the sale. Having regard to
the recitals of the contract, the Court then concluded that the
contracts in question involved sale of respective vessels within D
the meaning of clause (m) of the Andhra Pradesh General
Sales Tax Act and were not merely the works contract as
defined in clause (t) thereof.

91. In our opinion, the tests laid down in Hindustan E
Shipyard7 after Forty-sixth Amendment are not of much help in
determining whether a contract is a works contract or sale of
goods. In any case, Hindustan Shipyard? also says that there
is no absolute rule for distinguishing a contract for sale (of
goods} and a contract for labour (or services). F

92. It seems to us (and that is the view taken in some of
· the decisions) that a contract may involve both a contract of
work and labour and a contract of sale of goods. In our opinion,
the distinction between contract for sale of goods and contract·
for work (or service) has almost dimil'lished in the matters of G
composite .contract involving both (a contract of work/labour and
a contract for sale for the purposes of Article 366 (29-A}(b).
Now by legal fiction under Article 366(29-A)(b), it is permissible
to make such contract divisible by separating the transfer of
property in goods as goods or in some other form from the H
740 SUPREME COURT REPORTS [2013] 17 S.C.R.

A contract of work and labour. A transfer of property in goods
under clause 29(A)(b) of Article 366 is deemed to be a sale of
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. For this reason,
B lhe traditional decisions which hold that the substance of the
contract must be seen have lost their significance. What was
viewed traditionally has to be now understood in light of the
philosophy of Article 366(29-A).

C 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 flat and eventually sell the flat
with the fraction of land, it is obvious that such transaction
D 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
E parties is 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. When the
F 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
G building, in our view, are not of much significance and in any
case these factors do n"ot 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,
H
M/S. LARSEN & TOUBRO LIMITED v. STATE OF 741
KARNATAKA [R.M. LODHA, J.]
three conditions must be fulfilled: (i) there must be a works · A
contract, (ii) the goods should have been involved in the
execution of a works contract, and (iii) 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 B
to build a flat 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
c
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 D
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.
E
96. Value addition as a concept after Forty-sixth
Amendment to the Constitution has been accepted by this
Court in P.N.C. Construction17. While dealing with this concept,
the Court said that value addition was important concept which
had arisen after the Forty-sixth Amendment by insertion of sub- F
clause (b) of clause (29-A) in Article 366. It has now become
possible for the States to levy sales tax on the value of the
goods involved in a works contract in the same way in which
the sales tax was leviable on the price of the goods in a building
contract. On account of the Forty-sixth Amendment in the G
Constitution the State Governments are empowered to levy
sale,s tax on the contract value which earlier was not possible.

97. Where a contract comprises of both a works contract
and a transfer of immovable property, such contract does not
H
742 SUPREME COURT REPORTS (2013) 17 S.C.R..

A denude it of its character as works contract. Article ::166(29-
A)(b) does contemplate a situation where the goods may not
be transferred in the form of goods but m~y be transferred in
some other form which may even be in the form of immovable
property. The decision of the Australian High Court in. M.R.
B Hornibrook18 is worth noticing in this regard. Section 3(4) of
the Australian Sales Tax Assessment Act, 1930 was brought
in by way of amendment by the Legislature in 1932 which
reads, "For the purposes of this Act, a person shall be deemed
to have sold goods if, in the performance of any contract under
c which he has received, or is entitled to receive, valuable
consideration, he supplies goods the property in which whether
as goods (or in some other form) passes, under the terms of
the contract, to some other person". The question for
consideration before the Australian High Court in light of the
above provision was whether the contractor was liable to pay
0
sales tax on the transfer of goods involved in a works contract.
The majority judgment held as follows:

"In my opinion the commissioner is right in his contention
that this provision applies to the present case. The
E appellant company, in the performance of a contract for
building a bridge under which contract it was entitled to
receive and doubtless has received valuable
consideration, has supplied goods, namely, reinforced
concrete piles. Such piles are plainly manufactured articles.
F They are chattels. They were intended to be incorporated
in a structure and were so incorporated. They lost their
identity as goods in that structure. But this fact does not
prevent the piles from being goods any more than it
prevents bricks or stones or nuts and bolts from being
G goods. The fact that the goods were specially
manufactured and designed for a particular purpose
cannot be held to deprive them of the character of goods."
(Emphasis supplied)

98. M.R. Homibrook 18 has been followed by this Court in
H
M/S. LARSEN & TOUBRO LIMITED v. STATE OF 743
KARNATAKA [R.M. LODHA, J.)
Builders' Association4. This Court said that sub-clause (b) of A
clause (29-A) of Article 366 of the Constitution of India had more
or less adopted the language used in Section 3(4) of the
Australian Act.

99. Learned Advocate General. for Maharashtra
B
vehemently argued that there was noihing to prevent the
taxation of different aspects· of the same transaction as
separate taxable events. Pressing into service the aspects
theory, he argued that a contract for carrying out works coupled
with the sale of immovable property may be taxed by both, the
State legislatures and the Parliament within their respective C
spheres of legislative competence as there is deemed sale of
goods involved in works contracts. The works contract aspect
can be taxed by the State legislatures under Entry 54 of List II
of Seventh Schedule read with Article 366 (29-A)(b) of the
Constitution. The transfer of immovable property can be taxed D
by the Parliament under Entry 97 of List I. Mr. K.V.
Vishwanathan, however, argued that the aspect theory has no
application as the State legislatures inherently lack ·the
legislative competence to tax the transfer of an immovable
property. According to him, the aspect theory would apply when E
a tax is sought to be imposed on more than one distinct;.field
of legislation in relation to the same matter provided that there
exists in the States/Union legislative competence/legislative
power to levy a tax under each distinct head.
F
100. We have no doubt that the State legislatures lack
legislative power to levy tax on the transfer of immovable
property under Entry 54 of List 11 of the Seventh Schedule.
However, the States do have competence to levy sales tax on
the sale of goods in an agreement of sale of fl!it which also has
a component of a deemed sale of goods. Aspects theory though G
does not allow the State legislature to entrench upon the Union
List and tax services by including the cost of such service in
the value of goods but that does not detract the State to tax
the sale of goods element involved in the execution of works
H
744 SUPREME COURT REPORTS [2013] 17 S.C.R.

A . contract in a composite contract like contract for construction
of building and sale of a flat therein. In para 88 of Bharat
SancharS, the Court stated: "the aspects theory does not
however allow the State to entrench upon the Union List and
tax services by including the cost of such service in the value
B of the goods. Even in those composite contracts which are by
legal fiction deemed to be divisible under Article 366(29-A), the
value of the goods involved in the execution of the whole
transaction cannot be assessed to sales tax''. Having said that,
the Court also stated that the States were not competent to
C include the cost of service in the value of the goods sold (i.e.
the sim card) nor the Parliament could include the value of the
sim card in the cost of services. But the statement in para 92(C)
of the Report is clear that it is upto the States to tax the sale of
goods element in a composite contract of sale and service.
Bharat SancharS thus supports the view that taxation of different
D aspects of the same transaction as separate taxable events is
permissible.

101. In light of the above discussion. we may summarise
the legal position, as follows:
E
(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 fulfilted: (one) there must be a works
contract, (two) .the· goods should have been involved in the
F 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
G 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
H
M/S. LARSEN & TOUBRO LIMITED v. STATE OF 745
KARNATAKA [R.M. LODHA, J.]
their identity as goods but this factor does not prevent them A
from being goods.

a
(iii) Where a contract comprises of both works contract
and a transfer of immovable property; such contract does not
den.ude it of its character as works contract. The term "works B
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. C

(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. o
(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 E
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 F
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 G
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 involved in the H
746 SUPREME COURT REPORTS [2013] 17 S.C.R.

A execution of the works contract. Such a deemed sale has all
the incidents of the sale of goods involved in' the execution of
a works contract where the contract is 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-
B 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"
C 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.

D (x) Article 366(29-A)(b) serves 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
E it may not be sale within the meaning' of the Sale of Goods Act.

(xi) 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
F transfer of immovable property. T.he value of the goods which
can constitute the measure for the levy of the tax has to be the
val~e 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. ·
G
102. The crucial question would now remain: whether the
view taken in Raheja Development1 with reference to definition
of "works contract". in KST Act is legally unjustified? The
following definition of "works contract" was under consideration
H before this Court in Raheja Development1: "works contract"
MIS. LARSEN & TOUBRO LIMITED v. STATE OF 747
. KARNATAKA [R.M. LODHA, J.]
includes any agreement for carrying out for cash, deferred A
payment or other valuable consideration, the building,
construction, manufactur.e, processing, fabrication, erection,
installation, fitting out, improvement, modification, repair or
commissioning of any moveable or immovable property".
B
103. The Court also noticed the definition of "dealer" and
"taxable turn over ".

104. The broad facts in Raheja Development1 were these:

" Raheja Development carried on the business of c
real estate development and allied contracts;

" Raheja Development entered into development
agreements with the owners of land;

" Raheja Development entered into agreements of D
sale with intended purchasers. The agreements
provided that on completion of the construction, the
residential apartments or the commercial
complexes would be handed over to the purchasers
who would get an undivided interest in the land also; E

" The owners of the land would then transfer the
ownership directly to the society formed under the
Karnataka Ownership Flat (Regulation of the
Promotion of Construction, Sale, Management and
Transfer) Act, 1972 (for short, 'KOF~'). F

105. In light of the above facts and the definition of ''works
contract", the question before this Court was whether Raheja
Development were liable to pay turnover tax on the value of
goods involved in the execution of the works contract. G
106. Section 5-B of the KST Act provides for levy of tax
on transfer of property in goods (whether as goods or in some
other form) involved in the execution of works contract.

H
748 SUPREME COURT REPORTS [2013] 17 S.C.R.

A 107. On consideration of the arguments that were put forth
by the parties, the Court in Raheja Development1 held as under:

(i) The definition of the term "works contract" in the Act is
an inclusive definition.

B (ii) It is a wide definition_which includes "any agreement"
for carrying out building o.r constructiGn activity for cash,
deferred payment or other valuable consideration.

{iii) The definition of works contract does not make a
c distinction based 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 enters into an agreement to construct for
ca~h. deferred payment or other valuable consideration.

(iv) The developers had undertaken to build for the
D prospective purchaser.·

(v) Such, constructio,n/development was to be on payment
of a price in various installments set out in the agreement.

E (vi) The developers were not the owners. They claimed lien
, on the property. They had right to terminate the agreement and
dispose bf 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
F 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.
G
(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.

H
MIS. LARSEN & TOUBRO LIMITED v. STATE OF 749
KARNATAKA [R.M. LODHA, J.]
108. The correctness of the view taken in Raheja A
Development1 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 B
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 Raheja
Development1 is to be accepted then there would be no
difference between works contract and a contract for sale of c
chattel as a chattel and (c) from the definition of works contract,
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. 0
109. In Raheja Development', the Court on consideration
of the clauses (q} and (r) of the recitals and clauses (1), 5(c)
and (vii) of the agreement between the flat purchaser, developer
and owner of the land observed that the agreement had an
element for carrying out building and construction activity for E
cash, deferred payment or other valuable consideration. The
developer had undertaken to build for the prospective
purchaser. Having regard to the various clauses of the recitals
and also the clauses of the agreement, the Court was of the
view that such agreement was a .typical agreement and so long F
as there was no termination of the contract, the construction is
for and on behalf of the purchaser and it remains a "works
contract".

110. The argument on behalf of the developers that the flat G
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 H
750 SUPREME COURT REPORTS [2013] 17 S.C.R.

A 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
B 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
c ·purchaser. It is not necessary to recapitulate all clauses of the
agreement under KOFA or for that matter under MOFA. Raheja
Development1 takes note of relevant clauses of the recitals and
the agreement under KOFA. We need not repeat them.
Similarly, Form V of the Maharashtra Ownership Flat Rules
contains recital such as, 'as a result of the Development
0
agreernent 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 promo•"'r·
shall construct the said building/s .... in accordance with the
E 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 o1
F 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.
G
111. In the development agreement between the owner of
the land and the developer, direct monetary consideration may
not be involved but such agreement cannot be seen in isolation
to the terms contained therein and following development
H agreement, the agreement in the nature of tbe tripartite
M/S. LARSEN & TOUBRO LIMITED v. STATE OF 751
KARNATAKA [R.M. LODHA, J.)
agreement between the owner of the land, the developer and A
the flat purchaser whereunder the developer has undertaken to
construct for the flat purchaser for monetary consideration.
Seen thus, there is nothing wrong if the transaction is treated
as a composite contract comprising of both a works. contract
and a transfer of immovable property and levy sales tax on the B
value of the material involved in execution of the works contract.
The observation in the referral order that if the ratio in Raheja
Development1 is to be accepted then there would be no
difference between works contract and a contract far sale of
chattel as chattel overlooks the legal position which we have c
summarized above.

112. The argument that flat is to be sold as a flat and not
an aggregate of its ~omponent parts is already negated by the
Constitution Bench in the case of Builders' Association4. As a
matter of fact, in Builders' Association•, this argument was D
advanced on behalf of the States. Repelling the argument, the
Constitution Bench observed that it was difficult to agree with
the contention of the States that the properties that are
transferred to the owner in the execution of a works contract
are not the goods involved in the execution of works contract, E
but a conglomerate, that is the entire building which is actually
constructed.

113. Yet another argument advanced on behalf of the
· appellants is that in Raheja Deve/opment1, it is _noticed that
F
the builder has .a lien on the property but incorrectly states that
lien is because they are not owners. It is argued that lien is
because if the monies are not recovered from the prospective
·flat purchasers, the lien can be exercised and this would show
that the contract is a contract of an agreement to sell
immovable property. The argument is insignificant because if G
the developer has undertaken to build for the prospective
purchaser for cash or deferred payment or a valuable
consideration pursuant tci a contract then to that extent, the
contract is works contract and there is deemed sale of material
(goods) used in the construction of building and merely H
752 SUPREME COURT REPORTS (2013] 17 S.C.R.

A because the builder has a right of lien in the event due monies
are not paid does not alter the character of contract being
works contract.
114. In Article· 366(29-A)(b), the term 'works contract'
B covers all genre of works contract and it is not limited to one
specie of the contract. In Raheja Development', the definition
of ''works contract" in KST Act was under consideration. That
definition of "works contract" is inclusive and refers to building
contracts and diverse construction activities for monetary
consideration viz; for cash, deferred payment or other valuable
C consideration as works contract. Having regard to the factual ·
position, inter alia, Raheja Development' entered into
development agreements with the owners of the land and ii also
entered into agreements for sale with the flat purchasers, the
consideration being payment in installments and also the·
D clauses of the agreement the Court held that developer had
undertaken to build for the flat purchaser and so long as there
was no termination of the contract, the construction is for and
on behalf of the purchaser and it remains a "works contract".
The legal position summarized by us and the foregoing
E discussion would justify the view taken by the two Judge Bench
in Raheja Development'.

115. It may, however, be clarified that activity of.
construction undertaken by the developer would be works:
F contract only from the stage the developer enters into a contract\
with the flat purchaser. The value addition made to the goods I
transferred after the agreement is entered into with the flat
purchaser can only be made chargeable to tax by the State
Government.

G 116. The reasons stated in the referral order for
reconsideration of Raheja Development' do not make out any
good ground for taking a view different from what has been
taken by this Court in Raheja Development'. We are in
agreement with the submission of Mr. K.N. Bhat that since
H Raheja Development' in May, 2005 almost all States have
MIS. LARSEN & TOUBRO LIMITED v. STATE OF 753
KARNATAKA [R.M. LODHA, J.]
modified their laws in line with Raheja Development' and there A
is no justification for change in the position settled after the
decision of this Court in Raheja Development'.

117. The submission of Mr. K.N. Bhat that the view in
Raheja Development1 that whf!n a completed building is sold, B
there is no work contract and, therefore, no liability to tax is not
correct statement of Jaw, does not appeal to us. If at the time
of construction and until the construction was completed, there
was no contract for constructiol) of the building with the flat
purchaser, the goods used in the construction cannot be C
deemed to have been sold by the builder since at that time there
is no purchaser. That the building is intended for sale ultimately
after construction does not make any difference.

118. We are clearly of the view that Raheja Development'
lays down the correct legal position and we approve the same. D

119. There is challenge to the constitutional validity of
explanation (b)(ii) to Section 2(24) which was brought by
amendment with effect from 20.06.2006 in MVAT Act and sub-
rule (1A) which was inserted into Rule 58 of the MVAT Rules
E
by a notification ·dated 01.06.2009.

120. Clause (24)*** of Section 2 defines sale to mean a
sale of goods made Within the State for cash or deferred
payment or other valuable consideration but does not include
a mortgage, hypothecation, charge of pledge; and the words F
"sell", "buy" and."purchase", with all their grammatical variations
and cognate expressions. An explanation is appended to this
clause. Clause· (b)**** of the explanation to Section 2(24)

·- "2(24) "sale" means a sale of goods made within the State for cash or G
deferred payment or other valuabftn:onsideration bui does not include a
mortgage,,hypothecation, charge or pledge; and the words "sell", "buy" and
"purchase", with all their grammatical variations and cognate expressions,
shall be construed accordingly."
0
••• "(b)(i) the transfer of property in any goods. otherwise than in pursuance
of a contract, for cash, deferred payment or other valuable consideration;
H.
754 SUPREME COURT REPORTS [2013] 17 S.C.R.

A defines what would be a sale for the purpose of the clause and
brought in its ambit the transactions mentioned therein.
Explanation (b)(ii) was amended with effect from 20.06.2006
by inserting the following words after the words "works
contract": "including, an agreement for carrying out for cash,
B 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".

121. There is no doubt in our mind that the amendment in
C explanation b(ii) to Section 2(24) was brought because of the
judgment of this Court in Raheja Development'. We have
already held that Raheja Development' lays down the correct
legal position. Thus, in our view, there is no merit in the
challenge to the constitutional validity to the provisions of
D explanation (b)(ii) to Section 2(24) of MVAT which were
amended with effect from 20.06.2006. The Division Bench of
the Bombay High Court took the view that the provision under
challenge was not in breach of any constitutional boundaries.
This is what it said:
E
"34. The amended definition of the expression sale in

(ii) the transfer of property in goods (whether as goods or in some other form),
involved in the execution of a works contract..... ;
F (iii) a delivery of goods on hire-purchase or any system of payment by
instalments;
(iv) the transfer of the right to use any goods for any propose (whether or not
for a specified period) for cash, deferred payment or other valuable
consideration;
(v) the supply of goods by any association or body of persons incorporated or
G not, to a member thereof tor 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 made or given for cash, deferred payment or other valuable
H consideration;"
MIS. LARSEN & TOUBRO LIMITED v. STATE OF 755
KARNATAKA [R.M. LODHA, J.]
clause b(ii) of the Explanation to Section 2(24) brings A
within the ambit of that expression transactions of that
nature which are referable to Article 366(29A)(b). The
transactibns which the legislature had in mind involve
works contracts. What the state ·legislatures can tax under
the expanded definition contained in clause b of Article 366 B
(29A) must meet the governing requirements of that
clause. There must be a transfer of property in goods
a
involved in the execution of works contract. The relevant
clause in Section 2(24) is valid because i.t does not
transgress the boundaries set out in Article 366(29A). c
Indeed, after the 46th Amendment, State legislation must
confine itself to.; the limits set out even in the expanded
concept of what- constitutes a sale or purchase of goods
in Article 366(29A). State legislation cannot expand. the
ambit of what constitutes a tax on the sale or purchase of
0
goods beyond the constitutional frontiers. In order that
Section 2(24) remains within constitutional boundaries, in
the context of works contracts, it must be read to cover
those cases which fall within the expanded definition as
elaborated after the 46th Amendment. Whether there is a
works contract in a given case is for assessing authorities E
to determine. As noted earlier, it is not possible to provide
a comprehensive or all encompassing list of what contracts
constitute works contracts. Section 2(24) properly
construed, even after its amendment, reaches out to tho.se
cases which fall within the ambit of Article 366(29A). F
Explanation b(ii) to Section 2(24) in other words covers
those transactions where there is a transfer of property in
goods, whether as goods or in any other form, involved in
the execution of a works contract. Once those parameters
are met, the amended definition in the State legislation in G
the present case provides a clarification or cla rificatory
instances. When constitutional norms govern state
legislation such as those provided in Article 366(29A) in
this case, the legislatio.n must be co.nstrued in the context
of tho.se norms which it cannot transgress. The law is valid H
756 SUPREME COURT REPORTS [2013] 17 S.C.R.

A because it does not breach those boundaries. There is no
breach of constitutional boundaries."

122. We are in agreement with the above view and reject
challenge to amendment to the provisions of explanation (b)(ii)
B to Section 2(24) of MVAT Act.

123. Sub-rule (1A)***** was inserted into Rule 58 by a
notification dated 01.06.2009. As a matter of fact, Rule 58(1)
of the MVAT Rules provides that the value of the goods at the
time of the transfer of the property in goods involved in the
C execution of a works contract may be determined by effecting
certain deductions from the value of the entire contract insofar
as the amounts rela~ing to deductions pertain to the said works
contract. The challenge was laid to Rule 58(1A) of the MVAT
Rules before the Bombay High Court. The Division Bench of
o the Bombay High Court found that there was nothing to show
that the proviso to the said provision was arbitrary. It held that
the Legislature was acting within the field of the legislative
powers in devising a measure for the tax by excluding the cost
of the land. The Division Bench recorded the following reasons
E in repelling the challenge to Rule 58(1A).

"35. The challenge to Rule 58(1A), may now be

....."(1A) In case of a construction contract, where along with the immovable
property, the land or, as the case may be, interest in the land, underlying
F the immovable property is to be conveyed, and the property in the goods
(whether as goods or in some other form) involved in the execution of the
construction contract is also transferred to the purchaser such transfer is
liable to tax under this rule. The value of the said goods at the lime of the
transfer shall be calculated after making the deductions under sub-rule
(1) and the cost of the land from the total agreement value.
G The cost of the land shall be determined in accordance with the guidelines
appended to the Annual Statement of Rates prepared under the provisions
of the Bombay Stamp (Determination of True Market Value of Property)
Rules, 1995, as applicable on the 1st January of the year in which the
agreement to sell the property is registered:
Provided that, deduction towards cost of land under this sub-rule shall not
H exceed 70% of the agreement value."
M/S. LARSEN & TOUBRO LIMITED v. STATE OF 757
· KARNATAKA; [~.M, LODHA, .J.]
considered. The Rule has provided that in the case of. A
construction contracts where the immovable property, land
or as the case may be, interest therein is to be conveye\:\ .
and, the property involved in the execution of the.
construction contract is also transferred, it is the latter
component which is brought to tax. The value of the goods B
at the time of transfer is to be calculated after making the
deductions which are specified under sub-rule (1 ). The
judgment in the second Gannon Dunkerley specifies the
nature of such deductions which can be made from the .
entire value of the works contracts. This was permitted to c
the States as a convenient mode for determining the value
01 the goods in the~executiori of the works contract. .
· ' Similarly, the cost ofthe land is required .to be exciuded.
from the total agreement value. Sub-rule (1A) stipulates that
the cost shall 6e 'determined in accordance with the D
guidelines iippeli'ded to the Annual Statement of Rates
prepared under the provisions of the Bombay Stamp
(Determination of True Market Value of Property) Rules,
1995 as applicable on 1 January of the year in which the
agreement to sell the property is registered. The Proviso
E
stipulates that deduction towards the cost of land under the
sub-rule shall not exceed 70% of the agreement value. The
petitioners have not brought on the record any material to
indicate that the proviso to sub-rule (1A) of Rule 58 is
arbitrary. Rule 58(1A) provides for the measure of the tax.
The measure of the tax, as held by the Supreme Court in F
its decision in Union of India v. Bombay Tyre International
Ltd. [(1984) 1 sec 467], must be distinguished from the
charge of tax and the incidence of tax. The Legislature was
acting within the filed of its legislative powers in devising
a measure for the tax by excluding the cost of the land." G

124. The value of the goods which can constitute the
measure of the levy of the tax has to be the value of the goods
at the time of incorporation of goods in the works even though
property in goods passes later. Taxing the sale of goods H.
758 SUPREME COURT REPORTS [2013) 17 S.C.R.

A element in a works contract is permissible even after
incorporation of goods provided tax is directed to the value of
goods at the time of incorporl!tion and does not purport to tax
the transfer of immovable property. The mode of valuation of
goods provided in Rule 58(1A) has to be read in the manner
B that meets this criteria and we read down Rule 58(1-A)
accordingly. The Maharashtra Government has to bring clarity
in Rule 58 (1-A) as indicated above. Subject to this, validity of
Rule 58(1-A)1 of MVAT Rules is SL!Stained.

125~ Once we have held that Raheja Development1 lays
C down the correct law, in our opinion~ nothing turns on the circular
dated 07.02.2007 and the notification dated 09.07.2010. The
circular is a trade circular y.ihich is clarificatory in nature only.
The notification enables the registered dealer to opt for a
composition scheme. The High Court has dealt with the circular
D and notification. We do not find any error in the view of the High
Court in this regard. Moreover, "the Advocate General for
Maharashtra clearly stated before us that implementation of
Rule 58(1-A) shall not result in double taxation and in any case
all claims of alleged double taxation will be determined in the
E process of assessment of each individual case.

126. After having given answer to the reference, we send
the matters back to the Regular Bench for final disposal.-
Bibhuti Bhushan Bose Reference answered & matter
referred to Regular Bench.