MC 3760/2010 BEFORE HON’BLE MR JUSTICE B.K. SHARMA.. Heard Mr. K.N. Choudhury, learned senior counsel assisted by Mr. R. Dube y, learned counsel for the applicants. Also heard Dr. A.K. Saraf, learned senior counsel assisted by Mr. A. Goyal, learned counsel appearing for the writ petiti oner-opposite party. By means of this application filed by the State respondents, a prayer has been made to vacate the interim order operating in WP(C) No.1619/2009. The p rayer so made is pursuant to the order passed by the Division Bench on 12.11.201 0 in Misc. Case No.3177/2010 in Writ Appeal No.135/2009. For a ready reference, the order is quoted below :- This appeal was directed against an interim order passed by the learned Single Judge on 22nd April, 2009. The learned Single Judge declined to grant any interim relief to the writ petiti oner/appellant. Being aggrieved, the writ petitioner/appellant approached this Court in the Writ Appeal and by an order dated 22nd May, 2009 the Division Bench was of the opini on that there should be an interim suspension of the order under appeal. The eff ect of this is that the interim relief prayed for by the writ petitioner/appella nt has been granted. The writ appeal was disposed of by the order dated 22nd May, 2009 with liberty t o the parties to approach this Court for modification, if any, of the order pass ed on 22nd May, 2009. Pursuant to the liberty granted, the Respondent has moved an application in whic h it is prayed that the order dated 22nd May, 2009 be modified and the interim s uspension granted by this Court should be vacated. Since the appeal has already been disposed of, we are not inclined to entertain this application. However, we make it clear that the respondent is at liberty to move the learned Single Judge for considering the request for vacating the inte rim stay already granted. No further order is required to be passed in this miscellaneous application and it is accordingly disposed of. The writ petition has been filed against the Annexure-2 seizure list dat ed 6.4.2008. The prayer made in the writ petition is for a declaration to the e ffect that the transaction undertaken by the petitioner is out and out a sale ag reement and not the work contract. The writ petition was moved on 22.4.2009 before the learned Single Judge . While issuing notice on the writ petition as well as on the interim prayer, t he learned Single judge referring to the decision of the Apex Court in K. Raheja Development Corporation v. State of Karnataka reported in (2005) 5 SCC 162 decl ined to accede to the prayer for interim relief. Being aggrieved by the said or der to grant any interim relief, the petitioner preferred a writ appeal being W. A. No.135/2009. The writ appeal was entertained by order dated 22.5.2009 and the Division Bench passed the following order :- 22.5.2009 (Chelameswar, C.J.) Heard Dr. AK Saraf, learned senior counsel for the appellant. Admit. Notice. Mr. R. Dubey, learned counsel accepts notice on behalf of Respon dents. Therefore, no formal notice need be sent to the respondents. It is brought to our notice that the liabilities, such as the one, sought to be fastened, upon the appellant herein, is pending for consideration before a Large r Bench of the Supreme Court on a Reference made by the Division Bench doubting the correctness of the earlier decision of the Supreme Court, reported in (2005) 5 SCC 162 (M/S K. Raheja Development Corporation Vs. State of Karnataka). It is also brought to our notice that the Bombay High Court, in a similar matter , passed an interim order, dated 7.12.2007, which was modified by the subsequent order, dated 8.2.2008. In the circumstances, we are of the opinion that there shall be an interim suspe nsion of the judgment under appeal. However, the respondents are directed to scrutinize the records, which had alrea dy been seized by them from the appellant and shall not take any final decision thereon, until further order(s) from this Court. The question falls for consideration in the present appeal is - whether the acti vities of the appellant are exigible to the tax under Assam Value Added Tax Act, 2003. Admittedly, the applicant had already entered into agreement for the sale of fla ts, which are under construction and some flats with reference to which, no such agreement, is arrived at, so far. Assuming, for the sake of argument, that the appellant is, eventually, found to be liable to pay tax, as demanded by the Respondents, the tax being an indirect tax, in the normal course, it would be passed on to the purchasers. Therefore, w e are of the opinion that the appellant should submit before the Respondents a c omplete list of purchasers, who had already entered into agreement with the appe llant as well as the prospective purchasers, who are likely to enter into the ag reement from today onwards as no such agreements are entered into. The present appeal is preferred aggrieved by the order dated 2.4.2009, made in W P(C) No. 1619/09, whereby, a learned Single Judge of this Court, rejected the in terim prayer, as sought for, on behalf of the writ petitioner/appellant. In view of the order passed today, we are of the opinion that no useful purpose would be served in keeping the present writ appeal pending. Accordingly, this wr it appeal is disposed of. It is the aforesaid order seeking vacation of which the State respondent s had preferred the aforesaid Misc. Case No.3177/2010. As to what is the order passed in the said Misc. Case has been noted above. While Mr. K.N. Choudhury, learned Addl. Advocate General, Assam referri ng to the said order dated 12.11.2010 passed in Misc. Case No.3177/2010, submits that in view of the said order and also having regard to the observation made i n the said order that the effect of the order passed by the Division Bench grant ing the interim relief was that the interim relief prayed for by the writ petit ioner/appellant had been granted, this Court is now required to deal with the in stant application by which the State respondents have prayed for vacation of the interim order operating in the writ petition. Dr. A.K. Saraf, learned senior c ounsel appearing for the writ petitioner/opposite party submits that any order, if passed, by this Court on the basis of the prayer made by the State respondent s will amount to sitting on appeal over the above quoted Division Bench order d ated 22.5.2009. I am not impressed by the aforesaid submission made by Dr. Saraf, learne d counsel for the writ petitioner/opposite party in view of the fact that by or der dated 12.11.2010 passed by the Division Bench in Misc. Case No.3177/2010, li berty has been granted to the State respondents to move the Single Judge for con sidering the request for vacating the interim order of stay already granted. I am of the considered opinion that such liberty has been granted on two counts - firstly, the writ appeal has already been disposed of and secondly, and most imp ortantly, as has been observed by the Division Bench, the effect of passing the interim order by the Division Bench was that the interim relief prayed for by the writ petitioner/appellant has been granted. Thus, what has been provided b y the Division Bench by the aforesaid order dated 12.11.2010 passed in Misc. Cas e No.3177/2010 is that the interim order operating in the writ petition may be c alled in question by moving appropriate application before the leaned Single Jud ge, before whom the writ petition is pending. Coming to the prayer of the State respondents to vacate the interim orde r, as noted above, the learned Single Judge declined to pass interim order praye d for having regard to the Apex Court decision in K. Raheja (supra). In this con nection, the learned Single Judge has observed thus :- A plain reading of the agreement for sale (Annexure-A to the writ petition) pr ima facie demonstrates that the petitioner as a builder had thereby undertaken t he construction of building by arranging its own funds and that on the date of t he execution of the document it was at the stage of completion of internal plast er specific to the flat booked. The agreement further reveals that an amount of Rs.5 (five) Lakh as the full cost of the flat as consideration money had been r eceived by it. The two agreements of sale produced on behalf of the respondents however indicate that the same building on the date of execution thereof reste d at the stage of piling works specific to the flat booked and prior thereto. I n both these cases as well an amount of Rs.5 lakh each has been received by the petitioner. Admittedly the construction works of these buildings are being fur thered by the petitioner, understandably by utilising the funds/consideration mo ney realised from the prospective buyers. In the order dated 22.5.2009 passed in W.A. No.135/2009 also the Divisio n Bench of this Court referred to the said decision in K. Raheja (supra). It has also been observed that admittedly, the writ petitioner had already entered int o an agreement for sale of flats, which are under construction and some flats wi th reference to which no such agreement has been arrived at so far. It has also been provided that the writ petitioner should submit before the respondents a c omplete list of purchases, who had already entered into agreement with the writ petitioner as well as the prospective purchasers who are likely to enter into th e agreement from the date of order onwards as no such agreements were entered in to. In K. Raheja (supra), the test that evolved is that the construction act ivity by any one would amount to works contract, if the same is carried out on behalf of a third person in return of valuable consideration. It is true that t he said decision is under reference to a Larger Bench but until such time, the L arger Bench decision or otherwise a contrary view/principle comes into operation , the principles laid down in the said decision will continue to hold the field. In view of the above, I am inclined to vacate the interim order operatin g in the writ petition. In other words, there shall be no interim order operati ng in the writ petition. Misc. Case stands disposed of.