IC November 2018 (for web)

composite supply is a mixed supply. A supply of any business and would normally not be
which is naturally bundled and which has a entered into with intent to evade or avoid taxes.
principal supply is a composite supply.
Therefore, the tax should be levied only on the
In a mixed supply, the tax rate is the rate of the transaction value.
supply attracting highest rate and in a composite
supply, the applicable tax rate is the rate of tax B. Transitional Issues – Credits and Taxability
on a principal supply.
14. Notices issued for claiming credit under
GST law nowhere specify how to determine the Section 140(3).
principal supply. A number of disputes may
arise due to this. Contractors has been receiving notices for
justifying the eligibility of their claim of excise
12. Bringing petrol under GST duty paid on stock, claimed under Section 140(3)
of The CGST Act, 2017. For your reference,
Petrol is kept out of GST net. It is expected to be Section 140(3) is reproduced below:-
covered under GST however its fate rests with
GST council. Until it is covered under GST, the (3) A registered person, who was not liable to be
industry will lose the ITC of Excise and VAT registered under the existing law, or who was
paid on the same. The rate of taxes on petrol is engaged in the manufacture of exempted goods or
also very high. Therefore, there is double provision of exempted services, or who was providing
taxation, cascading effect and blockage of ITC. works contract service and was availing of the benefit
As long as these problem persists, the intention of notification No. 26/2012—Service Tax, dated the
of implementation of GST will not be fulfilled. 20th June, 2012 or a first stage dealer or a second
Therefore, it is expected that it should be bought stage dealer or a registered importer or a depot of a
under GST net as early as possible. manufacturer, shall be entitled to take, in his
electronic credit ledger, credit of eligible duties in
13. Sale of Capital Goods respect of inputs held in stock and inputs contained
in semi-finished or finished goods held in stock on
As per Section 18(6) of the CGST Act,2017, in the appointed day subject to the following conditions,
case of supply of capital goods or plant and namely:––
machinery, on which input tax credit has been
taken, the registered person shall pay an amount Section 140(3) allows claim of credit to works
equal to the higher of the following; contractor providing works contract service and
availing benefit of notification No. 26/2012-
• input tax credit taken or availed on the said Service Tax, dated the 20th June, 2012, and works
capital goods / plant and machinery as contractor availing such benefits are builders.
reduced by percentage points as So department is questioning all the works
prescribed; or contractors to clarify the allowability of their
claim.
• the tax on the transaction value of such
capital goods or plant and machinery as We would like to draw your attention to the
determined under section 15 of the CGST other scenarios envisaged under Section 140(3)
Act, 2017. viz:-

The taxes in respect of an inward supply of 1. A registered person, who was not liable to
capital goods, where credit has been availed, be registered under the existing law, or
would be paid by the recipient to the supplier,
and consequently, remitted to the credit of the 2. who was engaged in the manufacture of
exempted goods or provision of exempted
Government at the time of inward supply. services, or

Moreover, one must appreciate that cases where 3. a first stage dealer or
capital goods are disposed of for a value that is
significantly lower than the purchase-price soon, 4. a second stage dealer or
after their receipt, upon availment of input tax
credits, would be isolated transactions in respect 5. a registered importer or

6. a depot of a manufacturer

INDIAN CONSTRUCTION 51 November 2018

A works contractor, is eligible to claim credit of parlance meaning to be used - goods which do
excise duty paid on stock under other scenarios not attain finality are called as work -in-
also. Department, without considering this fact, progress/semi-finished goods/intermediate
is issuing notices to works contractors asking goods – Benefit of remission available u/r 21 of
them to clarify assuming that if they are not CER, 2002.
builder then, they cannot claim credit of excise
duty paid on their stock. This tendency is Further, Chief Commissioner of Central Tax
making life of works contractors extremely & Customs, Visakhapatnam has issued a press
difficult. release dated 6.12.2017 stating that the builders
need not collect balance monies before 1.7.2017
15. Credit of inputs held in work in progress. threatening buyer for higher tax incidence post
GST implementation. As per the press release,
Section 140(3) allows credit to works contractors the builder will not face additional tax incidence
availing benefit of Notification No. 26/2012,- as he will be able to claim credits. The relevant
Service tax, dated the 20th June, 2012. The section portion of the press release is as mentioned
is reproduced below:- below:-

“(3) A registered person, who was not liable to be “The Central Board of Excise & Customs, New Delhi
registered under the existing law, or who was and States have received several complaints that in
engaged in the manufacture of exempted goods or view of the “works contract” service tax rate under
provision of exempted services, or who was providing GST @ 12% in respect of under construction
works contract service and was availing of the flats, complexes etc, the people who have booked
benefit of notification No. 26/2012—Service Tax, flats and made part payment are being asked to
dated the 20th June, 2012 or a first stage dealer or make entire payment before 1st July, 2017 or to
a second stage dealer or a registered importer or a face higher tax incidence for payment made after
depot of a manufacturer, shall be entitled to take, in 1st July, 2017. This is against the GST law. The
his electronic credit ledger, credit of eligible duties issue is clarified as below:-
in respect of inputs held in stock and inputs
contained in semi-finished or finished goods held 1. Construction of flats, complex, buildings
in stock on the appointed day subject to the following will have a lower incidence of GST as
conditions, namely……..” compared to a number of central and state
indirect taxes suffered by them under the
This provision allows credit of eligible duties existing regime.
on inputs held in stock, inputs contained in semi-
finished goods and inputs contained in finished 2. Incidence of Central Excise Duty, VAT, Entry
goods. tax, etc. on construction material is currently
borne by the builders, which they pass on to
In case of builders, the stock majorly consist of the customers as a part of price charged from
under construction structures which are known them. This is not visible to the customer as it
as work in progress. Taking a view that semi- forms a part of cost of the flat.
finished goods differs from work in progress,
department has denied the carry forward of 3. This will change under GST. Under GST, full
credit of eligible duties on inputs held in work input credit would be available for offsetting
in progress as on the appointed day. The same the GST rate of 12%. As a result, the input
is clarified in an internal circular issued by taxes embedded in the flat will not (& should
Directorate General of Audit, Central Taxes as not) form a part of the cost of the flat.”
reported in F. No. 381/274/2017 issued in the
month of February, 2018. As stated above, the press release states that
even for unit under construction as on 1.7.2017,
However, judiciary hasn’t discriminated tax incidence will reduce.
between work in progress and semi-finished
goods. In the case of ALA Chemicals vs. CCE as On the other hand the internal departmental
reported in (2011)-TIOL-940-CESTAT –MUM, it circular states that the credit of inputs held in
was held that work –in progress goods and work in progress is not allowed. In such case,
semi-finished goods are not defined – common the builders will have negative tax impact as in
case of under construction units, major cost

INDIAN CONSTRUCTION 52 November 2018

consists of work in progress and the output tax a. All inclusive.
after GST is increased by almost 5%. Therefore,
a press release stating that GST will have b. All exclusive.
positive tax impact on under construction units
goes contrary to the circular issued by A lot of contractual disputes are going to arise
department. for taxability of on-going contracts with
inclusive clauses. Govt. should come up some
So as of now Govt. has issued two documents clarification that GST, being indirect tax levy,
on this issue and both provides contrary view. must be passed on to the end-consumer.
Without prejudice to above interpretation, if
builders are not allowed to carry forward their 19. Settlement of GST claims
credits then the prices in housing sector will go
up by 4-5%. Looking to the Govt.’s intention to It is observed that Project owners are taking time
promote housing, increase in price because of to amend/re-negotiate the existing contracts
additional tax incidence goes against the policy due to change in cost and till then invoices are
decisions made by Govt. kept under hold.

The fact that tax statue should support policy Public sector customers / Government agencies
decisions also put a question mark on are not accepting the bills raised by the
reasonability of disallowance of carry forward Construction Companies. Due to non-settlement
of credit on inputs consumed in work in of claims, the working capital position of all the
progress. Construction Companies is severely affected.

16. Section 140(3) and 140(6) of CGST Act Further it is also their contention that advances
towards mobilization, equipment and inputs are
Credit on stock of inputs held in ongoing works not towards supply of service and hence GST is
contract cannot be claimed if invoice is earlier not applicable on such advances.
than 12 months from the appointed day.
On account of above issues bills are held up and
17. Credit of Krishi Kalyan Cess (KKC) the contractors are facing severe financial
hurdles to keep continuity of work flow.

Can the credit of KKC be carried forward was a Various Government, Local authority,
disputed matter since the appointed day. Governmental authority / Government
Almost all the assessee have carried forward this Undertakings are expressing their inability to
credit on the basis of strict interpretation of law. settle claims on account of GST differential, for
The department had given a hint that they will the reason that they do not have any direction
not allow credit of KKC. An adverse advance from the Government to do so.
ruling has also been issued on this subject.
Further, recently, Gov. has proposed a 20. Anti-profiteering clause under GST
retrospective amendment for disallowing credit
of KKC. In absence of any mechanism, there is possibility
that some margin (may be upto 5%) depending
If the credit is required to be reversed then, the on the value and volume of business would be
unutilised balance of KKC becomes a cost in there between availment and distribution of
the hands of the assessee. Further, benefits. In this scenario, an acceptable negative
notwithstanding the textual interpretation, the margin should be prescribed. Further, a lot of
fact that carry forward of KKC is restricted goes Companies have spent Crores of rupees in
against the very principal of seamless flow of customization of their ERP systems on the
credit as propagated by Govt. every now and implementation of GST. These expense should
then. Therefore, KKC credit should not be be deducted from the benefits before they are
restricted. passed to their clients.

18. Taxability of on-going contracts C. Exemptions

Contracts contain following kind of clauses viz.:- 21. SEZ Benefits

INDIAN CONSTRUCTION 53 November 2018

Under Section 16 of the IGST Act, supply of 24. Exemption to payment received from NHAI
goods or services or both to a Special Economic
Zone Developer or a Unit would be zero rated The annuity received from NHAI is exempted
supply. under Notification 12/2017-CGST (Rate) dated
28th-06-2017. Along with annuity, contractor also
The provisions are silent as to whether benefit receives a lump sum amount in a BOT contract.
of zero rated supply is available to sub- Along with annuity, lump sum amount received
contractors supplying goods/services to SEZ. In from NHAI should also be exempted.
order to ensure the tax neutrality, SEZ benefits
should be specifically extended to sub- 25. Exemptions provided till 2020
contractors also.
Under Service tax regime, a lot of exemptions
22. Exemption to devices & parts as well as supply were granted with a promise of continuing them
of Composite Works Contract service provided till 2020. The exemptions under Notification No.
for Solar Power Generating system 25/2012-Service Tax dated 20th June, 2012 were
as follows:-
Solar Power Generating Projects and its
development are on high priority of the “14A. Services by way of construction, erection,
Government and it is taking every possible steps commissioning, or installation of original works
to promote generation of Renewable Energy for pertaining to an airport or port provided under a
the benefit of general public. contract which had been entered into prior to 1st
March, 2015 and on which appropriate stamp duty,
Presently Photo voltaic Cells etc. required for where applicable, had been paid prior to such date:
Solar Power generation system attracts 5% GST. provided that Ministry of Civil Aviation or the
Ministry of Shipping in the Government of India, as
Further these modules of solar power project, the case may be, certifies that the contract had been
currently also attract Basic Customs duty @7.5% entered into before the 1st March, 2015:
on import of these items.
Provided further that nothing contained in this
23. Government works undertaken prior to entry shall apply on or after the 1st April, 2020;”
1.7.2017
“12A. Services provided to the Government, a local
The definition of Govt. entity as per Notification authority or a governmental authority by way of
11/2017 is as follows:- construction, erection, commissioning, installation,
completion, fitting out, repair, maintenance,
“Government Entity means an authority or a board renovation, or alteration of –
or any other body including a society, trust,
corporation, (a) a civil structure or any other original works
meant predominantly for use other than for
i) set up by an Act of Parliament or State commerce, industry, or any other business or
Legislature; or profession;

ii) established by any Government, with 90per (b) a structure meant predominantly for use as
cent. or more participation by way of equity or
control, to carry out a function entrusted by (i) an educational,
the Central Government, State Government,
Union Territory or a local authority.” (ii) a clinical, or

Definition of Government Entity does not cover (iii) an art or cultural establishment; or
cases of NBCC where the stake is 75%.
(c) a residential complex predominantly meant for
Looking to the above scenario, either the self-use or the use of their employees or other
definition of control should be clarified or the persons specified in the Explanation 1 to clause
scope of Govt. entities should be enlarged in (44) of section 65 B of the said Act; under a
order to ensure that the Govt.’s intention should contract which had been entered into prior to
be accomplished. the 1st March, 2015 and on which appropriate
stamp duty, where applicable, had been paid

INDIAN CONSTRUCTION 54 November 2018

prior to such date: lead to numerous disputes on the eligibility of
credit on various plant and machineries as in
Provided that nothing contained in this entry most cases, various plant and machineries
shall apply on or after the 1st April, 2020.” require civil works to support their operation.

These exemptions are not continued under GST 28. Input tax credit on renting of immovable
regime. Govt. intended to extend these property
exemptions till 2020 and therefore, they should
have continued these exemptions till 2020 under Section 17 (5) (d) of the CGST Act, 2017 restricts
GST also. By not continuing these exemptions, claim of credit in respect of all goods or services
they have not followed the doctrine of or both on all contract services which are for
promissory estoppel. construction of an immovable property unless,
such immovable property is ‘plant and
D. Input Tax Credit machinery’.

26. Input Tax Credit Where a building is constructed and let on rent,
it is important to understand that such building
Under Section 17(5)(c), ITC of tax charged on would qualify as ‘plant’ – hence the
works contract service is blocked for end user corresponding input credits used in constructing
of such service. For example - If Mr. A receives the said building be allowed. Similarly, for
works contract service for renovation of his construction of factories, office premises etc.
factory, which is used by him for production of where such premises are used in business, such
taxable goods then also he is not entitled to claim structures would qualify as ‘plant’ and the
credit of such tax. Further, this provision also corresponding credits be allowed.
blocks credit in situation where works contract
services are used as input for providing output 29. Conditions to claim ITC
construction services. Looking to the fact that
the basic infrastructure is the primary As per Section 16(2) (c) of the CGST Act, 2017
requirement to commence any business and the the recipient shall be entitled to claim ITC on
fact that substantial amount is involved in these his inward supplies, only if the Supplier has
services, the credit on such services should not remitted to the Government, the taxes collected
be blocked for the end user. from the recipient. Punishing the recipient for
the default of supplier is not equitable.
27. Exclusion of ‘Any other civil structure’ from
the definition of ‘Plant and Machinery’ 30. Interest on Reversal of credit availed on
Capital Goods
The credit of goods and services used for
construction of an immovable property is In case if the capital goods are used partly for
blocked except if it is used for construction of affecting exempt supplies or partly for affecting
plant and machinery. The term plant and exempt supplies then, there is a requirement of
machinery is defined as:- reversal of credit as per method prescribed in
rules. One pain point is that the reversal is
For the purposes of this Chapter and Chapter required with interest. As the law is on initial
VI, the expression “plant and machinery” means stages, interest on reversal of credits should not
apparatus, equipment, and machinery fixed to earth be charged.
by foundation or structural support that are used
for making outward supply of goods or services or E. Time of Supply
both and includes such foundation and structural
supports but excludes— 31. Time of supply

(i) land, building or any other civil structures; Section 13 of the CGST Act indicates the
provisions for determining the time of supply
(ii) telecommunication towers; and in respect of services.

(iii) pipelines laid outside the factory premises. As per the recommendation made by the GST
Council in its 23rd meeting, exemption have
Use of the term “Other civil structures” in the been granted on payment of GST on advance
exclusion list of “Plant and Machinery” may

INDIAN CONSTRUCTION 55 November 2018

receipt of goods, however, in case of services, transactions does not provide any clarity on this
the same is still continued and GST is payable aspect.
on receipt of advances.
35. Taxes paid incorrectly under wrong head due
In case of long term advances of contracts, where to error in determination of place of supply
mobilization advance is paid to the contractors
and the recovery of such advances is also done In situations where an assessee has paid Central
proportionately from the invoices being raised. and State / Union territory tax on a transaction
Thus, this results in blockage in working capital. considering it to be an intra-State supply but
which is subsequently held to be an inter-State
32. Time of supply supply, he is required to make a fresh payment
of integrated taxes and the tax wrongly paid will
The liability to pay tax on services shall arise at be refunded.
the earliest of the date of issuance of invoice by
the supplier, if the invoice is issued within the The given section provides for refund of the tax
period prescribed under sub-section (2) of paid earlier on account of incorrect place of
section 31 or the date of receipt of payment, supply; however, the assessee is forced to pay
whichever is earlier. the correct nature of tax again (i.e. integrated
taxes instead of Central and State / Union
In most of the Government projects the invoices territory tax) i.e. he will have to end up remitting
/ RA bills are raised for the work executed in a double the amount of actual tax that is liable to
particular month but the release of the payment be paid until the refund is processed and paid
for the same RA bill / invoice is delayed due to to him. This double payment of tax amount by
non-availability of the funds with the client. the assessee will lead to severe financial
However, as per section 13(2), the liability to pay hardships to the assessee depending on the
GST arises once the invoice is raised since gravity of the error and blockage of working
invoice date is earlier than the payment received capital funds.
date. This is in respect of works contract
executed for the Govt. / Governmental G. Invoice, Debit/Credit notes
Authority.
36. Raising of Invoice and determination of value
Hence, the contractor is liable to pay the GST in case of Barter transactions
from his own source which will affect the funds
and hamper the progress of work. Therefore, the In Govt. contracts like slum redevelopment, the
time of supply should be issuance of payment. consideration is mostly in kind like granting of
FSI. The provision of any service/supply of
F. Place of supply goods against another service is treated as a
barter transaction. In barter transactions, there
33. Place of Supply in case of insurance of is no clarity about the manner of raising of
immovable properties invoices, whether different values can be
adopted by the supplier and receiver,
The place of supply for services in relation to an respectively for the purpose of payment of tax
immovable property is the place where the on same transaction.
immovable property is situated. However, there
is no clarity as what would be the place of supply 37. Section 34 of CGST Act - Credit and Debit Notes.
of insurance service taken for more than one
immovable property. Credit notes can be issued in two circumstances
viz. –
34. Place of supply of services in case of works
contracts a. Return of goods

There is no clarity for place of supply in case of b. Change in price of existing supply of goods
movement of goods from one State to another or services
for provision of works contract services.
Section10 (1) (b) of IGST Act which prescribes However, law does not permit issue of credit
place of supply rules for bill to ship to note for cancellation of service not provided for.

INDIAN CONSTRUCTION 56 November 2018

H. Registration structure for services could not be claimed.

38. Registration of Works Contract services – 40. Section 50(1)
Interstate Supply
Section 50(1) levy interest on non-payment of
Works Contractors, having a principal place of tax. As per the said section, tax is not paid if the
business in one state may undertake execution amount of tax liability is not adjusted from the
of works across India in many States. The electronic cash ledger and electronic credit
registration provisions require the works ledger. So till the time the tax liability does not
contractor to obtain registration in each such stands adjusted, the Govt. presumes that the tax
State even though he has no place of business liability is not discharged.
in those States. If the strict interpretation is taken
then, mere installation works also attract However, the amount of balance held in
registration requirement. electronic cash ledger and electronic credit
ledger is already blocked for the taxpayer. He
I. Refund / Payment of Taxes and Interest cannot utilise such amount elsewhere therefore,
qua the balance held in electronic cash ledger
39. Refund on account of inverted rate structure and electronic credit ledger and in addition, if
he is made liable for paying interest on such
Where the credit has accumulated on account amount then, it will adversely affect his working
of rate of tax on inputs being higher than the capital therefore, the Govt. should not levy
rate of tax on output supplies (other than nil interest for late payment on the balance held in
rated or fully exempt supplies), except supplies electronic cash ledger and electronic credit
of goods or services or both as may be notified ledger.
by the Government on the recommendations of
the Council. J. Other miscellaneous issues

Section 54(5) - In the case of refund on account of 41. Advance Rulings – Equity and constitutional
inverted duty structure, refund of input tax credit validity
shall be granted as per the following formula -
Certain rulings have clearly shaken the faith one
Maximum Refund Amount = {(Turnover of would have reposed in the Advance
inverted rated supply of goods and services) x
Net ITC ÷ Adjusted Total Turnover} - tax Ruling Authority, such rulings will also open
payable on such inverted rated supply of goods flood gates of litigation.
and services
For eg: UPS & Battery (SWITCHING AVO
The text in red is inserted on 18th April, 2018. ELECTRO POWER LTD):
Earlier this formula was meant for claiming
refund of excess credit due to inverted rate Advance Ruling Authority (“AAR”) has held
structure for supply of goods only. However, that supply of UPS and battery shall be regarded
Act allows refund for both supply of goods and as a mixed supply and not a composite supply.
services. It was held that goods can be considered as
“naturally bundled” only if the supply contract
Therefore, to remove the apparent mistake, the is indivisible. Definition of composite supply u/
rule was substituted through Notification No. s 2(30) of the CGST Act, 2017 does not talk about
21/2018-Central Tax dated 18th April, 2018 and whether the contract is divisible or not. It only
through that rule “services” was included in the says that two or more taxable supplies shall be
formula. Apart from this, the definition of Net regarded as composite supply if they are
ITC was also substituted. The substitution of naturally bundled and supplied in conjunction
definition of Net ITC creates another anomaly with each other in the ordinary course of
as earlier Net ITC included credit for inputs business, one of which is a principal supply. So
and input services however, after substitution, one needs to re-think on the current mechanism
Net ITC includes credit for inputs only. as this eventuality will clearly defeat the purpose
for which authority has been set-up.
Resultantly, refund on account of inverted rate

INDIAN CONSTRUCTION 57 November 2018

Further, the lack of judicial arm in the the Government should come up with a “No
constitution of Advance Ruling Authority is in Deduction Certificate” for such cases.
violation with Article 30 of the Constitution and
the rules are excessively delegated in this Sir, it would be our privilege to meet you
regards. Delhi High Court has accepted a writ personally at your office on any day & date
petition on this issue recently. convenient to you to explain more on the issues
mentioned in our letter, if addressed properly
42. Deduction of TDS under Section 51 will lead to economic growth of the whole
country.
TDS at the rate of 2% is required to be deducted
from payments made to contractors by Thanking you,
Government employers. The credit of TDS
deducted will be available to the contractor in Yours faithfully,
its electronic credit ledger.

Most of the works contract services provided to A. PUHAZHENDI
the Government is taxed at the rate of 12%. Tax PRESIDENT
on inputs may range from 5% to 28%. In this
scenario, the credits available will be more than BUILDERS’ ASSOCIATION OF INDIA
the output tax liability. Further, a service
provider is barred from claiming refund of Copy to: i) GST Council Secretariat,
unutilized input tax credit under Section 54. 5th Floor, Tower-II,
Jeevan Bharathi Building, Janpath,
Therefore, the Government contractors will have NEW DELHI – 110 001
excess input tax credits and by deduction of
TDS, contractors will also have balance in their ii) Hon’ble Finance Minister of all State’s
electronic cash ledger. This will lead to blockage
of working capital. Therefore, it is expected that

Obituaries

Mr. S. Nethaji left for his Mr. Ajit Sonawane left for his
heavenly abode on 16th October, heavenly abode on 24th October
2018. Mr. S. Nethaji was Past 2018. Mr. Ajit Sonawane was the
Hon. Jt. Secretary, BAI Southern younger brother Mr. Anil
(Chennai) Centre. Sonawane, Past Chairman, BAI
Ahmednagar Centre.
Mrs. Vithabai Haribhau More
left for her heavenly abode on Mr. Ilangovan left for his
17th October, 2018. Mrs. Vithabai heavenly abode on 10th
Haribhau More was grandmother November, 2018. Mr. Ilangovan
of Mr. Ranjeet More, Past Vice was Past Chairman of BAI
President, BAI. Puducherry Centre.

Mrs. Malati Jagadish Parekh left Mr. Harishankar Shau left for
for her heavenly abode on 22nd his heavenly abode on 15th
October 2018. Mrs. Malati November, 2018. Mr.
Jagadish Parekh was wife of Mr. Harishankar Shau was Patron
Jagdish Parekh, Past Vice Member of BAI from Durg-Bhilai
President & Past Trustee of BAI. Centre.

'Indian Construction' prays to the Almighty to rest the departed souls in peace
and grant fortitude to the bereaved families to bear the irreparable loss.

INDIAN CONSTRUCTION 58 November 2018

Our focus is constantly to ensure better
ROI and ROTI

The industry is gearing up for the stalwarts. I must assure you and
fourth edition of ‘bauma the industry that this is our top
CONEXPO INDIA’. With the priority and our efforts to accomplish
construction sector at its peak this this, both in quality and numbers is well underway.
year, the event has strong support
from over 30 different national and We are travelling across the country with our bauma
international associations and over CONEXPO INDIA road shows, reaching out to the
30 media partners. In an exclusive key buyer segments including contractors and end
interview with Indian Construction Journal, users; decision makers & purchase managers of our
Bhupinder Singh, CEO, bC Expo India Pvt. Ltd. exhibitors. We have also visited Sri Lanka, met
elaborates on the fourth edition of this construction mega important associations for the construction industry
fair. and expect strong delegations. Our bauma network
with its worldwide offices will bring in international
How is the fourth edition of bauma CONEXPO visitors to the show with an aim to drive country
INDIA shaping up? Can you share overall statistics delegations. Thanks to our representation in countries
of the show and on the international participation? outside India that this is possible.

This year we have already secured a 30% growth A new initiative called “buyer seller forum” shall
compared to the last edition. This is a remarkable. improve the number of focused meetings with
bauma CONEXPO INDIA 2018 and a reflection of predefined objectives. For the first time, we have
the market and has shaped up extremely well, I’d strong support from over 30 different national and
say that the overall market mood is upbeat and international associations and over 30 media partners
reflects a positive trend. We are happy to have ; a special thanks to all media partner for the support
country pavilions from Germany, China, Spain and and cooperation as our media partner. It’s a special
exhibitors from 30 countries. This gives an year for bCI 2018 and with all these multipliers
international flavor and adds variety and innovation promoting the show, it’s going to be a collective
to our platform. success eventually.

bauma CONEXPO INDIA 2018 looks to be the What concurrent conference programs are going to
largest event for bauma CONEXPO brand in scale take place this year at the show?
and size this year, can you share what visitor
promotion activities are undertaken to attract bauma CONEXPO INDIA encompasses the entire
visitors national and international as that is the range of construction equipment’s and building
most crucial aspect? material machines, hence the visitors can expect to
see the full range including the components and
You have put it aptly, bringing the right mix of accessories. In addition, conference programs are
exhibition is the first step and the vital move is to planned to cover various themes and sectors, for the
attract relevant delegates, buyers and industry first time, we shall be organizing a conference on
“Transportation Infrastructure” covering the themes
on roads sector, urban transportation and railways.
These sectors are currently driving the demand for
the CE sector and the conference will deliberate on
the latest trends and challenges and focus on the way
forward. Our Partner association ICEMA will also
be organizing a conference focusing on latest
technologies and financing. Currently the renting
industry is undergoing a transformation with heavy
demand and scope; this topic shall be addressed by,
Construction Equipment Rental Association (CERA).
Overall we will have more than half a dozen

INDIAN CONSTRUCTION 59 November 2018

concurrent events aligned with the fair. organized by American Equipment manufacturers
(AEM) show. By the cooperation agreement, the two
Will you please elaborate on your new initiative partners are pursuing the joint objective of promoting
‘buyer seller meets’? topics in the industry through close collaboration and
therefore reacting to the needs and demands of the
This is a special initiative which we run in all our exhibitors and visitors at an early stage.
exhibitions in India. It has been successful and How and what measurers have you take as the
appreciated by key stakeholders. For the first time organizer to ensure proper security, smooth traffic
we will be introducing it at bCI 2018 where targeted flow and accommodation facilities near venue etc
buyer seller meetings shall be planned “before” the for the exhibitors and visitors?
fair and organized “during” the fair to enhance the
ROI (return on investment) for exhibitors and ROTI As an organizer, the security and safety of our
(return on time invested) for the visitors/buyers. In participants is always a prime concern. We work very
a show as large as bauma CONEXPO INDIA it closely with the local traffic and police offices and
becomes important to have such forum to bring the also depute private security persons to ensure safety
visitors and exhibitors together with pre planned as well as control the traffic for smooth operations.
meetings where the visitors could have a business Based on our learnings from last edition we will try
discussion with the exhibitors and meet their pre- and minimize any teething issues for the participants.
defined objectives. I would like to use your platform The location of venue is strategically located with
to appeal to your readers to register themselves and many hotels in the near vicinity along with better
make use of this forum which is offered without any connectivity between Gurugram and NCR. The
fees. details are already up on our website through the
link of our official travel partner which shall offer
bauma CONEXPO INDIA recently had an engaging solutions for our exhibitors and visitor travel needs.
partnership with ICEMA, how is that helping the As CEO of bauma CONEXPO INDIA, how do you
industry at large and how will it help CE industry see the Indian CE industry is evolving with respect
as a whole? to mechanization, new technology, quality control
as per global standards?
The partnership with ICEMA have been very
encouraging and the relationship is growing with The equipment standards and features in India are
each edition. ICEMA in its capacity as the largest matching up with global standards and customers
association for the construction machinery sector in are also becoming demanding thus driving new
India, acts as a strong link between the industry and innovations in the equipment’s planned for India
government’s decision makers, and campaigns for .Advanced telematics, IOT, predictive maintenance
growth and development in the industry. The etc. is now coming into market. Like the recent Bharat
construction machinery market in India is stage IV norms have brought new emission
experiencing a positive trend, primarily on account technologies and going forward it won’t be too late
of the increase in road construction and infrastructure we may see alternate ecofriendly fuels in the
development. Therefore the partnership is a logical construction vehicles and earth moving machines.
step to promote the transfer of know-how and the Some of the companies also have their manufacturing
development of the infrastructure in India. This will facilities in India which cater to the export market;
enable us to examine and recognize trends and
solutions for the Indian market and address them at (Contd. on pg. no. 62....)
the show. The synergies between two strong partners
are therefore being combined – for the benefit of
exhibitors and visitors at the trade fair. Together, we
can continue to expand and strengthen the trade fair
as one of the most important platforms for industry
stakeholders as well as government in India ICEMA
also helps give shape to the government’s initiatives
like skilling in the construction equipment industry
through IESC. The collaboration with ICEMA is on
global level and are present at bauma cluster shows
and in CONEXPO CON/AGG in Las Vegas

INDIAN CONSTRUCTION 60 November 2018

All India Meetings of Builders' Association of India

Tuesday, 11th December 2018
Conference Hall of 'bauma CONEXPO INDIA 2018', HUDA Ground,

Opp. IFFCO Metro Station, Gurgaon, NCR, Haryana

The meetings of the Managing Committee and General Council of the Builders' Association of India
(BAI) will be held on Tuesday, 11th December 2018 Conference Hall of 'bauma CONEXPO INDIA
2018', HUDA Ground, Opp. IFFCO Metro Station, Gurgaon, NCR, Haryana.

Members of the Managing Committee and General Council of BAI, who are CEO's, Directors, Managing
Partners, Proprietors of civil engineering construction and real estate building companies will be
attending the meetings from across the length and breadth of India.

The meetings offers an apt platform to manufacturers and service providers to the Indian construction
industry to give wide exposure to their products and/or services by making interesting presentations.
Representatives of the manufacturers and service providers also get to informally interact with the
members from across India.

The meetings of BAI are being held in conjunction with 'bauma CONEXPO INDIA 2018' - International
Trade Fair for Construction Machinery, Building Material Machines, Mining Machines and Construction
Vehicles, to be held between 11th and 14th December 2018 at HUDA Ground, Opp. IFFCO Metro
Station, Gurgaon, NCR, Haryana. Spread over 195,000 sqm space, 'bauma CONEXPO INDIA 2018'
will feature more than 700 manufacturers and suppliers from India and overseas. Exhibitors from 25
countries are going to display the best of construction equipment and machinery. The event also features
special demo area, conferences, workshops and other supporting programs.

BAI is joint organiser of 'bauma CONEXPO INDIA 2018'.
For more details, please contact:

SHRI UMESH R. ACHARYA SHRI SWAPNIL SALEKAR SHRI S.S.ARORA
Chairman, BAI, Gurgaon Centre Accounts Executive Executive Officer
M/s. AVS Enterprises Builders' Association of India. BAI Delhi Office
S-372, 2nd Floor, Uppal Southend, G-1/G-20, 7th Floor, Commerce Centre, J. D-1/203, Aashirwad Complex,
Sector-49, Behind Omaxe City Center, Dadajee Road, Tardeo, Mumbai 400034 Green Park Main, New Delhi 110016
Sohna Road,Gurgaon-122 018, Haryana Tel.: (022) 23514134, 23520507 Tel.: (O) (011) 26568763
(M) 09958704488 (M) 09029009292/ 09076337294 (M) 09555448763
Email: [email protected] Email:[email protected] Email: [email protected]

Note : For members desiring to stay in the BAI designated hotel in New Delhi, please revert back to [email protected]

‘Buyer-Seller Forum’ in ‘bauma CONEXPO INDIA 2018’

‘Buyer-Seller Forum’ is a business matchmaking forum 9 Get exclusive deals and offers on purchase orders
being arranged during ‘bauma CONEXPO INDIA placed during the event.
2018’. Interested members need to register for the
‘Buyer-Seller Forum’. The participation is free of cost. 9 Meet financial institutions to get financial support
As a participant of Buyer Seller Forum, member can: to plan future investments.

9 Meet potential vendors for requirements of 9 Benefit sourcing team and strengthen your supply
construction machinery, Building material chain.
Machines and Construction Vehicles.
9 Receive free copy of market research report on
9 Shortlist suppliers based on requirements and Construction Equipments sector in India.
engage in a very focused one on one discussion
with the suppliers. 9 Get free show catalogue and personal assistance
in fixing meetings with exhibitors.

For registering for ‘Buyer Seller Forum’ of ‘bauma CONEXPO INDIA 2018’, please contact
Mr. Anand Dhillon on +91-8082481434 / 022-42554706 or email: [email protected].

INDIAN CONSTRUCTION 61 November 2018

Product Launch

Schwing Stetter launches its new premium variants of concrete truck mixers
'Super Six', in partnership with Mahindra Powerol
- Super Six variants to be GPS enabled & IoT ready

M/s Schwing Stetter India, one of the country's o Best in class fuel efficiency resulting in lowest
leading concrete equipment manufacturers' on 26th lifecycle cost which helps customer save "5
July, 2018, announced its partnership with Mahindra Lakhs in 5 years".
Powerol, a business unit of the USD 20.7 billion
Mahindra Group, to launch its new premium variant o Future ready engines
of concrete truck mixers - 'Super Six'. In an industry-
first initiative, Schwing Stetter and Mahindra Available with Mahindra Suraksha - a
Powerol have joined hands to launch this fuel comprehensive maintenance program and live track
efficient product. system which can be supplied on requirement.

The Super Sixtruck mixers were conceptualized At the press conference, Mr. Anand Sundaresan,
based on the current needs of customers in this Vice-Chairman & Managing Director of Schwing
segment and will have the Mahindra Powerol Stetter India said, "At Schwing Stetter, we take pride
engines. The Super Sixtruck mixers have undergone in associating only with companies that have best-
several extensive trials to meet the industry in-class products. Needless for me to say, partnering
requirements of smart, premium and intelligent with Mahindra Powerol is a huge step for Schwing
products. The Supersix variants are listed below. Stetter India. Keeping in mind the feedback we
received from customers, we decided to partner with
1. Super Six IOT In and IOT Ready(powered Mahindra Powerol to launch the Super Six range
directly by truck chassis engine) which can boast of higher fuel efficiency, lower costs
of ownership and other key add on features. We are
2. Super Six GPS and Standard (powered by thrilled by the launch of IoT enabled smart truck
Mahindra Powerol Engine) mixers,and hope that our customers see value in this
product. We hope for a long-standing partnership
The other significant features of Super Six are: with Mahindra Powerol."

o Large loading volume. According to Mr. Sachin Nijhawan, Business Head,
o Optimum drive characteristics. Mahindra Powerol, "This is a long term association
o Best-in-class spiral geometry. as both the companies believe in providing value to
o Stetter T-protect wear protection. their customers. Products such as Super Six reinforces
o Large clearance for concrete discharge. our approach to provide the best to our customers
o Easy to clean and service. and proposition of relentless customer focus".
o Highest resale value.

(....Contd. from pg. no. 60)

keeping India as a hub. This has also positively In the process, we see business being discussed and
impacted to bring the global standards and know- negotiation onsite on various levels, business offers
how to India. rolled out by the OEM’s during the show and also
by the finance companies fostering business
What kind of impact the exhibitors can expect from transaction onsite. In short, platforms such as ours
the show like bauma CONEXPO INDIA ? facilitate and help foster and multiply business
during the show. Sometimes the results are instant,
bauma CONEXPO INDIA is a platform to showcase sometimes it takes a few months or quarters which
new innovations, launch new products and a way looking at the high value stakes is understandable.
for participating companies to communicate with However our focus is constantly to ensure better ROI
their customers. Our objective as an exhibition and ROTI which eventually results in contributing
organizer is to ensure and maximize the reach of our impetus for the CE industry.
exhibitors to their existing as well as new customers.

INDIAN CONSTRUCTION 62 November 2018

Tenant cannot deny the tittle of the Landlord After hearing for the parties the ld.
even if there exist any dispute between landlord Single Judge observed that the
& 3rd parties record discloses that the petitioner
was inducted into the suit premises
IN THE HIGH COURT OF JUDICATURE, AT by the respondent on issuance of a
ANDHRA PRADESH rent note. That the petitioner had
been paying rent to the respondent.
2014 (1) RCR - 577 Once the relationship between the
parties was covered by a rental deed, it is not at
Before Justice Narasimha Reddy J. all open to the petitioner to deny the title of the
respondent/landlord, even if there exist any
D. Suresh Kumar .............................Petitioner/Tenant dispute between the respondent/landlord on one
v/s hand and third parties on the other hand.

Mohd. Dastagir (deceased) per L.R In a suit against the Wakf Board, the petitioner had
.................................................... Respondent/Landlord pleaded that the respondent was the absolute
owner of the premises and that the Wakf Board
The Petitioner is the tenant of the respondent in had no right or authority vis-à-vis the suit
respect of the suit premises @ of Rs. 35/- rent per premises. This clinched the issue, having taken
month. The respondent filed a suit for eviction of such a categorical stand before a court of law; it
the petitioner on the ground of arrears of rent and was not open to the petitioner to deny the title of
malafied denial of title. The Rent Controller the respondent.
decreed the suit and directed the petitioner to
handover the possession of the suit premises to In the execution application the petitioner wanted
the respondent. The petitioner's appeal against the to expand the scope of the executing proceedings
order of the Rent Controller was also dismissed. and in effect, wanted to doubt the correctness of
the order of eviction (which was already discussed
The respondent took out execution proceeding and decided by the trial court as well as by the
wherein the petitioner took out an application for appellate court). This is totally impermissible and
issue of witness summons to four persons. According the said order of the executing was perfectly right.
to him the respondent had forged the sale deed and Petition dismissed with no order as to costs.
the opponent had filed a proceeding in this behalf
and in view of this it was necessary to summon the Prevention of Unfair Labour Practices Act (1 of
witness. The executing court dismissed this 1972) S. 28][U L P
application, hence, the present petition.
IN THE HIGH OF JUDICATURE, AT MUMBAI,
The Counsel for the petitioner submitted that the [Aurangabad Bench]
suit premises were owned by A.P. Wakf Board and
the respondent was only the mutawali and tenant 2014(6) ABR - 542
of the Wakf Board and therefore, he had no
authority to initiate proceedings for eviction. It Before Justice Ravindra V. Ghuge J.
was further contended that the Rent controller and
the Appellate Authority did not take into account Executive Engineer, MSEDLL, Jalgaon and Other
the fact the Wakf Board itself initiated proceeding ...................................................................... Petitioners
against the respondent in respect of the suit
premises and in that view there was no basis for V/S
ordering eviction of the petitioner. Sau. Anjali Anil Tare ................................ Respondent

On behalf of the respondent it was submitted that The respondent was appointed as a Lower
the respondent himself inducted the petitioner into Division Clerk (L.D.C.) in 1977. She passed her
the suit premises under a rent note and that the lower division grade examination on 30/03/1980
petitioner had been paying rent to the respondent. and later on she became eligible for promotion as
In a proceeding filed by the petitioner against the Upper Division Clerk (UDC). On promotion she
Wakf Board, when the Wakf Board issued notice was working as UDC till 1997, when she was
for arrears of rent, wherein the petitioner not only transferred from Jalgaon to Parbhani. In order to
stated that the respondent was the landlord but
also averred that Wakf Board had no right over
the suit premises.

INDIAN CONSTRUCTION 63 November 2018

continue at Jalgaon, due to her personal reasons, allowing of a recovery against the employee,
she opted for a reversion from the post of UDL to where there is no misrepresentation or fraud on
LDC. She joined the office of the petitioners at the part of the employee. For the wrong or mistake
Jalgaon in 1997 on the reverted post of LDC. committed by the employers, an employee cannot
be held responsible. The court can permit recovery
On 05/11/2008, the respondent gave an only when the over payment is detected within a
application for fixation of her pay. It was in June, short time.
2009 that the petitioners realised that the
respondent was paid an excess salary of Rs. No interference is called for. Petition dismissed
1,94,637/= from October, 1997 till May 2009. An with no order as to costs.
order dated 29/05/2009 was issued for carrying
out recovery of the said amount from her. Indian Evidence Act

The respondent preferred a complaint (ULP) No. [IN THE HIGH COURT OF JUDICATURE, AT
38 of 2009 before the Industrial Court at Jalgaon MUMBAI
on 10/07/2009 and challenged the recovery order
dt. 29/5/2009. By an interview recovery was 2015 (2) ALL. M.R - 231
stayed. The respondent stood retired on attaining
the age of superannuation on 31/03/2012 and later Before Justice Mrs. Mridula Bhatkar J.
on 19/11/2013, the complaint was allowed by the
Industrial Court, Jalgaon, and hence, the present Mrs. Suvarna R. Musale .............................. Petitioner
Writ Petition before the High Court which was V/S
heard by the Ld. Single Judge, who after hearing
the counsels, observed as under: Rahul P. Musale ......................................... Respondent

On behalf of the petitioners it was submitted that The respondent/husband has filed the petition
due to inadvertence and oversight, the petitioners under the provisions of Hindu Marriage Act, for
failed to record that the respondent had opted to decree of legislation of conjugal rights. The
be reverted from UDC to LDC and therefore, Petitioners/Wife in her written statement cum
continued to draw salary on the basis of UDC. If counter claim demanded divorce. The petitioner
excess amount of Rs. 1,94,631/- was recovered she has been working in USA and a daughter by the
will not suffer any loss as she was not entitled to name Rujuta who was born out of the wedlock also
earn the same and thus cannot be legitimate stay with the petitioner in USA and she is 5 ½ years
expectation. old.

On behalf of the respondent it was submitted that The evidence of the husband is recorded by the
the respondent is a senior citizen and has already family court. Now the petitioner has to lead her
retired on 31/03/2012 and now we are October, evidence and for that purpose application is filed
2014. She had been constantly reminding and also by her for recording her evidence through video
sent representations to the petitioners for fixation conferencing and also for the appointment of a
of her salary. Court Commissioner for recording the cross-
examination of the petitioner through video
The Court observed the respondent has not conferencing. The said application was rejected by
indulged in any fraud or misrepresentation. The the Family Court Judge. Hence, the petitioner/
negligence and laxity on the part of the petitioners wife has filed the present writ petition challenging
cannot be countenanced and she cannot be the said order of family court.
compelled to face the brunt of the wrongful actions
of the petitioners. Being an aged person and On behalf of the petitioner it was submitted that
surviving on pension, recovery of the amount of since the petition/wife is serving in U.S.A. and
Rs. 1,94,637/- would cause severe hardships and looking after a minor daughter, it is not convenient
irreparable harm to the respondent. for her to come to India just for giving evidence
and certain judgements were also cited.
Relying upon the Judgement in the case of Sayed
Abdul Qadir and v/s State of Bihar reported in On behalf of the respondent/husband it was
2009 (3) SCC - 475 wherein the Supreme Court contended that the court will be deprived of an
observed that equitable principles would prohibit opportunity to observe demeanour of the witness
which is necessary to arrive at correct conclusion.

INDIAN CONSTRUCTION 64 November 2018

Physical appearance of a witness is necessary for maintaining records. The petitioner's services were
smooth trial and that there is no special terminated. The respondent despite written
circumstance for recording evidence though video representation refused to re-instate the services of
conferencing. the petitioner. Hence, the petitioner filed a
complaint stating that barring the Diwali Holidays
The Id. Single Judge observed travelling to and during the period of 18/10/1990 to 21/10/1990
from U.S.A. to India is undoubtedly financially he was in uninterrupted services from 01/04/1984
expensive so also it is difficult for a mother of 6 till 03/01/1991. He further alleged that he was
years old girl to arrange the logistics. The given one day break in a month for which his
legislatures have made amendments in the salary was deducted. No notice was given by the
provisions of Evidence Act relating to electronic respondent as required under the provisions of
record and have acknowledged advance Industrial Dispute Act, while the services of other
technology and scientific methods used by the workers were retained though they were juniors
people in their day-to-day activities. It is high time to him.
for us to change our mind set and see whether this
new technology can help us to increase the speed The respondent defended the complaint denying
and also we have to take into account the the version of the complainant on the ground that
convenience of parties as our judicial system is the complainant was working as a daily rated
necessarily litigant centric. labourer on daily wages from 1984. That the
complainant was irregular in attending his work.
The presence of the person can be obtained He was abusing the Superior Forest Officer and
physically so also virtually. What is important is did not improve despite warnings.
that a person should be seen and be heard and vice
versa. There are methods of distant The Labour Court, upon evidence led, was pleased
communication, which is possible by virtual to order reinstatement of the complainant with
measures and micro speaker. Therefore, it is not continuity of services holding that the termination
necessary for the judge to insist physical presence of the complainant from the services was illegal.
of a witness when it is not possible. Especially in The respondent being aggrieved by the order of
the circumstances of this case, a virtual presence the Labour Court filed Revision Petition before the
can be secured which is very much legal and for Industrial Court and the said order of Labour
this purpose. Hence, the order of the family court Court was reversed. Hence, the petitioner has filed
is set aside and the application of the petitioner the Writ Petition before the Hon'ble High Court.
for recording her evidence through video
conferencing and for appointment of the Court The ld. Single Judge after hearing the counsels for
Commissioner for recording her cross-examination the parties and after perusing the record and
is allowed. proceedings of the matter observed that looking
into the facts and circumstances of the case in
Industrial Disputes Act/Prevention of Unfair hand, the argument is acceptable that the employer
Labour Practises cannot be justified to continue to engage the
workman for years together by giving one day
IN THE HIGH COURT OF JUDICATURE, AT break in every month intending to avoid the
MUMBAI liability to pay wages payable according to the law
by resorting to unlawful termination of services
2015 (1) Mah. L.J. - 673 of the workman.

Before Justice Shri A. P. Bhangale J. The plea of the employer that the workman
concerned was frequently absent is not supported
Kawadu S/o Paikaji Parke ............ Complainant/ by any cogent and substantive evidence. The
Petitioner conclusions drawn in the order by the Labour
Court appears to be well reasoned and based upon
v/s pros and cons of the facts and evidence led by
Dy. Conservator of Forest .................... Respondent parties and in conformity with the legal position
which is well settled.
The Complainant was working with the
respondent from 1984. He was taking The Labour Court directed the respondents to
measurement of wood, giving numbers and

INDIAN CONSTRUCTION 65 November 2018

desist from indulging in unfair labour practices petitioners requested the Estate Officer of CIDCO
proved and consequently directed the to issue "MAVEJA" (enhanced compensation)
reinstatement of the petitioner (complainant) with NOC. Thereafter, the petitioners were informed
continuity of services and full back-wages. The that the occupancy certificate was being refused
Industrial Court appears to have misled itself by to the petitioner since MAVEJA NOC was not
ignoring the fact on evidence and hence for the submitted. This action on the part of CIDCO is
Industrial Court, there was no satisfactory under challenge by the petitioners in present Writ
justification to brush aside the well-reasoned order petition.
of Labour Court. In the result the Petition is
allowed and the judgement of Industrial Court is On behalf of the petitioners it was contended that
quashed and not set aside and the judgement of CIDCO being the Planning Authority could not
Labour Court is restored with costs. Petition rely upon the agreement entered into with the
allowed. original allottee so as to compel the petitioners to
pay additional compensation and the same is
Writ cannot be issued to a party to an agreement contrary to the provisions of MRTP Act and the
to wriggle out of its obligations under the D.C. Rules.
agreement.
On behalf of the respondents (CIDCO) it was
IN THE HIGH COURT OF JUDICATURE, AT contended that the amount of enhanced
MUMBAI compensation sought for was on the basis of
original allotment letter dated 26/10/2007 and this
2015 (2) ABR - 41 liability was further incorporated in the
subsequent agreements entered into between the
Before Justice A.S. OKA & A.S. Chandurkar JJ. parties and that the CIDCO has deposited the said
enhanced amount as per orders passed in Land
M/s G.D. Buildcon P. Ltd. ....................... Petitioner Acquisition proceedings.

v/s The Judges of the Division Bench after hearing for
the parties observed that it is clear that the
Industrial Development Corporation of petitioners having accepted the rights and
Maharashtra Ltd. [CIDCD] ................ Respondents liabilities that were flowing from the order of
allotment dated 26/10/2007 and subsequent lease
An allotment of 12.50% land was made in favour deeds now cannot be permitted to resite from the
of Abdul Kadar Abdul Mulla and other co-owners same and be heard to say that they were not liable
on 26/10/2007. They entered into an agreement to pay the amount of enhanced compensation.
dt. 22/02/2008 with CIDCO and were permitted
to use 1249.61 sq. mts land for constructing Having accepted the rights and liabilities under
buildings to be used for residential purpose. As the aforesaid transactions voluntarily and with
per the agreement the lessees unconditionally open eyes the petitioners cannot now turn around
agreed to pay additional lease premium to CIDCO and contend that it was not liable to pay the
in the event of any enhancement of compensation enhanced compensation. Permitting the
in proceeding under Land Acquisition Act, 1984. petitioners to do so would amount to permitting
the petitioners to wriggle out of its obligations
It was also stipulated that on failure to make such under the aforesaid agreement after having
additional payment, the agreement to lease could accepted the same.
be terminated. Subsequently, a tripartite
agreement was executed with CIDCO and the Granting a relief as prayed for by the petitioners
petitioner whereby the rights and interests were would have the effect of directing CIDCO not to
transferred in the name of the petitioners and the insist upon the payment of enhanced
rights and liabilities as contained in the original compensation despite the fact that such payment
lease deed dated 22/02/2008 were kept intact. was agreed to be paid by the petitioners.
Moreover, CIDCO has already deposited the said
The petitioners thereafter, took steps for amount in court.
development of the property in question. After
issuance of commencement certificate the The Writ is dismissed with no order as to costs.

INDIAN CONSTRUCTION 66 November 2018





Date of signing the joint Development agreement this Court in the case of Chaturbhuj Dwarkadas
is not fully relevant for determining the Capital Kapadia v/s. Commissioner of Income Tax is
Gain Tax liability !! distinguish. He also relied upon a decision of the
Tribunal in the case of Jasbir Singh Sarkaria, In Re
CIT vs. Dr. Arvind S. Phake (Bombay High Court) (2007) 294 ITR 0196.

Section 2(47)(v): Immovable property is regard to He pointed out that the said decision relies upon the
have been transferr on the date of execution of the decision of this Court in Chaturbhuj Dwarkadas
Development. Agreement and irrevocable General Kapadia v/s. Commissioner of Income Tax (2003)
Power of Attorney only, if the terms indicate that 260 ITR 491 (Bom.). He would therefore submit that
complete control is given to the developer. If the considering the terms and conditions incorporate in
entire consideration is not receive by the assessee. the development agreement, the date of transfer for
And physical possession of the property is not parted the purposes of Income Tax Act ought to be taken as
with, there is no transfer u/s 2(47)(v). 13th September, 2017 when the agreement was
executed.Date of signing
Date of signing
(ii) What binds this Court is that the judgment of the
The High Court had to consider the following Division Bench in the case of Chaturbhuj Dwarkadas
substantial questions of law in an appeal filed by Kapadia v/s. Commissioner of Income Tax (2003)
the Department: 260 ITR 491 (Bom). The Division Bench held that the
date of contract is relevant provided the terms of the
“(i) Whether on the facts and in the circumstances contract indicate passing off or transferring of
of the case and in law, the ITAT is correct in holding. complete control over the property in favour of the
The date of transfer as the date of handling over of developer.
physical possession of the property i.e. 01.03.2008
by the assessee, as against the date of Execution of The Division Bench laid down the test for
Development Agreement alongwith irrevocable determining the date which should be taken into
General Power of Attorney i.e. 13.09.2007? account for determining the relevant accounting year
in which the liability accrues. In the present case,
(ii) Whether on the facts and in the circumstances of the Appellate Tribunal has taken into consideration
the case and in law, the ITAT is correct in ignoring various clauses in the development agreement. Sub
the provisions of Section 2(47)(v) of the Income Tax clause (d) of clause (3) of the agreement provides
Act, which indicates that the year of chargeability is that after full payment of consideration, the
the year in which the contract is executed even if the construction shall be undertake by the developer.
transfer of immovable property is not effective or
complete under the general law? Admittedly, on the date of execution of the
development agreement, the entire consideration
(iii) Whether on the facts and in the circumstances was not receive by the respondent assessee. The
of the case and in law, the ITAT has erred in ignoring physical possession of the property subject matter
the judgment of this Court in the case of Chaturbhuj of development agreement was part with by the
Dwarkadas Kapadia v/s. CIT (2003) reported in 260 respondent assessee on 1st March, 2008. It was held
ITR 491 (Bom) wherein it is held that if the contract, on that day, complete control over the property was
read as a whole, indicates passing of or transferring pass on to the developer. After having perused the
of complete control over the property in favour of various clauses in the agreement and the aforesaid
the developer, then the date of contract would be factual aspects. The Tribunal has taken 1st March,
relevant to decide the year of chargeability?” 2008 as the date of transfer.

HELD by the High Court dismissing the appeal: Date This funding is fully consistent with the law the
of signing Division Bench in the case of Chaturbhuj Dwarkadas
Kapadia. Therefore, no fault can be find with the
(i) The learned counsel appearing for the appellant impugn judgment of the Tribunal. When it is held
Revenue relied upon a decision of High Court of that the investment made in the sum of Rs.50,00,000/
Andhra Pradesh in the case of Potla Nageswara Rao by the respond assessee on 22nd August. 2008 was
v/s. Commissioner of Income Tax in Income Tax within the period specified under Section 54EC of
Appeal No.245 of 2014. He submitted that in the said the said Act.
decision, the law laid down by a Division Bench of

INDIAN CONSTRUCTION 69 November 2018

BAI Communications . . .

To,
Members of Builders’ Association of India
Dear Friends,

Reg.: Buyer-Seller Forum in bauma CONEXPO INDIA 2018

You all are already aware of ‘bauma ¾ Get exclusive deals and offers on purchase
CONEXPO INDIA 2018’ – 5th International orders placed during the event.
Trade Fair for Construction Machinery, Building
Material Machines, Mining Machines and ¾ Meet financial institutions to get financial
Construction Vehicles (www.bcindia.com), to be support to plan future investments.
held between 11th and 14th December, 2018 in
HUDA Grounds, opp. IFFCO Chowk Metro ¾ Benefit your sourcing team and strengthen
Station, Gurgaon, NCR, Haryana your supply chain.

Builders’ Association of India (BAI) is the Joint ¾ Receive free copy of market research
Organiser of bauma CONEXPO INDIA 2018. report on CE sector in India.

For the first time ever, a ‘Buyer-Seller Forum’ ¾ Get free show catalogue and personal
has been introduced at bauma CONEXPO assistance in fixing meetings with
INDIA 2018. exhibitors.

Availability of latest products, technologies We request you to register for the ‘Buyer-Seller
and services in the market does not serve the Forum’, by indicating your area of interest in
purpose until and unless it reaches to the the form printed alongside herewith and can
users/applicators as per their requirement and send scan copy to [email protected]. Your
hence the ‘Buyer-Seller Forum’. ‘Buyer-Seller meetings will pre-scheduled and details will
Forum’ is a business matchmaking forum be shared prior to your visit thus enabling you
being arranged during ‘bauma CONEXPO to utilise your time effectively.
INDIA 2018’ to address your sourcing
requirements. The participation is free of cost For more details of the ‘Buyer Seller Forum’,
and particpants will be personally assisted in please contact Mr. Anand Dhillon on +91-
fixing their meetings with exhibitors. 8082481434 / 022-42554706.

As a participant of ‘Buyer-Seller Forum’, With warm regards,
member can:
Yours faithfully,

¾ Meet potential vendors for requirements
of Construction machinery, Building
material Machines, Mining Machines and
Construction Vehicles.

¾ Shortlist suppliers based on requirements A. PUHAZHENDI
and engage in a focused one on one PRESIDENT
discussion with them.
BUILDERS’ ASSOCIATION OF INDIA

INDIAN CONSTRUCTION 70 November 2018

INDIAN CONSTRUCTION 71 November 2018

INDIAN CONSTRUCTION 72 November 2018