Page 148 - GSTL_16 April 2020_Vol 35_Part 3

362 GST LAW TIMES [ Vol. 35
of the ‘Agreement of Sale’, which is executed under the MOFA, except for
the words ‘lease’ and ‘rent’ used therein.
47. Thus, if the entire ‘Agreement’ is perused as such, then it becomes ap-
parent on the face of it also, that it cannot be termed or treated as an
‘Agreement of Lease’, but, in its real purport, it is an ‘Agreement of Sale’.
The very fact that more than 80% of the entire consideration amount is al-
ready paid by the Respondents to the Appellant and the lease premium
agreed is only of Rs. 1/- per annum, including the clause relating to the pe-
riod of lease of 999 years, are self-speaking to prove that, in reality, the
transaction entered into by the parties is an ‘Agreement of Sale’ and not an
‘Agreement of Lease’; though it is titled as such. The law is well settled that
the nomenclature of the document cannot be a true test of its real intent and
the document has to be read as a whole to ascertain the intention of the par-
ties.
48. Similar clauses can be found in the present agreement. The Pay-
ment Schedule found in Schedule D also shows payment made as per the stages
in the completion of the construction. (Clause 4.1) Clause 4.2 says that ‘the lessee
shall also be liable to bear and pay all stamp duty and registration charges. As
per clause 4.6 the developer has also agreed to facilitate the process of obtaining
loan from the financing agency. As per Clause 5.2 the lessee also has to pay ad-
vance maintenance charges for operation and maintenance of the common facili-
ties. The developer is to give the possession on or before the completion dates as
decided. As per clause 6.3, if the developer fails to complete the construction
within the period the developer has to pay interest to the lessee. Clause 12.6 says
that it is agreed between both that the limited common areas and amenities are
for common usage by the prospective lessee together with all the resi-
dents/prospective lessee together. Thus clauses similar to the one in the case of
Lavasa are found in the present case and the judgment is applicable on all fours.
49. The project is also registered under RERA. The object of the Act is
as follows :-
..An Act to establish the Real Estate Regulatory Authority for regulation
and promotion of the real estate sector and to ensure sale of plot, apartment
or building, as the case may be, or sale of real estate project, in an efficient
and transparent manner and to protect the interest of consumers in the real
estate sector and to establish an adjudicating mechanism for speedy dispute
redressal and also to establish the Appellate Tribunal to hear appeals from
the decisions, directions or orders of the Real Estate Regulatory Authority
and the adjudicating officer and for matters connected therewith or inci-
dental thereto.
Though the object of the Act is to regulate the sale of building, apartment or
building, this project is RERA registered. This fact and the interpretation by the
Bombay High Court in the case of Lavasa also shows that the said transaction is
not a lease.
50. Thus, in view of the above discussion, we, hereby, pass the follow-
ing order :
ORDER
51. We agree with the findings and order of the Advance ruling author-
ity and find no reason to deviate from the conclusions derived by them.
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GST LAW TIMES  16th April 2020  268