2007 (8) TMI 694 - HC - VAT and Sales Tax

Is 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, subject to levy of sales tax under the Tripura Sales Tax Act, 1976? Who is liable to pay such a tax? Whether sub-rule (2) of rule 3A of the Tripura Sales Tax Rules, 1976 can be treated to be a valid piece of delegated? Held that - It becomes abundantly clear that a person, who executes a works contract, shall, by a legal fiction, which section 2(b) creates, be treated as a dealer and such a person, for being a dealer , becomes, under section 3A, liable to pay sales tax for transfer of property in goods involved in the execution of works contract, for, such transfer of property in goods would be deemed to be a sale of the goods by the person making the transfer. Unless the TST Act is suitably amended by either expanding the definition of dealer or by making appropriate changes in the provisions of section 3, which is the charging section, no person, who transfers the right to use any goods for any purpose, can be held liable to pay sales tax under the TST Act. What also crystallizes from the above discussion is that rule 3A(2) is, in the light of the discussion held above, ultra vires the TST Act. Appeals, preferred by the writ petitioners, are hereby allowed.

Summary

Issues Involved:
1. Whether the transfer of the right to use any goods for any purpose is subject to levy of sales tax under the Tripura Sales Tax Act, 1976 (TST Act).
2. Who is liable to pay such a tax if applicable.
3. Validity of sub-rule (2) of rule 3A of the Tripura Sales Tax Rules, 1976 (TST Rules) as a piece of delegated legislation.

Detailed Analysis:

Issue 1: Levy of Sales Tax on Transfer of Right to Use Goods
The court examined whether the transfer of the right to use any goods for any purpose is subject to sales tax under the TST Act. The definition of "sale" under section 2(g)(ii) of the TST Act includes "any 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." The court concluded that the transfer of the right to use any goods for any purpose amounts to a "sale" within the meaning of section 2(g)(ii), making it taxable at four percent under the TST Act.

Issue 2: Liability to Pay Sales Tax
The court analyzed who is liable to pay the sales tax. According to section 3 of the TST Act, the liability to pay sales tax is on a "dealer." The definition of "dealer" under section 2(b) includes any person who sells taxable goods manufactured, made, or processed by him in Tripura or brought by him into Tripura for sale. The court noted that the definition does not include a person who transfers the right to use any goods for any purpose. Therefore, the court concluded that without broadening the definition of "dealer," a person who transfers the right to use any goods cannot be made liable to pay sales tax.

Issue 3: Validity of Rule 3A(2)
The court scrutinized the validity of sub-rule (2) of rule 3A, which mandates the deduction of an amount equal to four percent of the dues towards sales tax payable on the transfer of the right to use any goods. The court held that since the TST Act does not impose any liability on a person who transfers the right to use goods, the rule-making authorities could not have enacted such a rule. The court emphasized that the general power of rule-making under section 44(1) of the TST Act cannot be used to create a legal obligation not imposed by the statute itself. Therefore, rule 3A(2) was held to be ultra vires the TST Act.

Conclusion:
The court concluded that:
1. The transfer of the right to use any goods for any purpose is taxable under the TST Act.
2. The liability to pay sales tax is on a "dealer," and the current definition does not include a person who transfers the right to use any goods.
3. Rule 3A(2) is ultra vires the TST Act as it imposes a liability not contemplated by the statute.

The appeals preferred by the State Government were dismissed, while the appeals preferred by the writ petitioners were allowed. The court held that no authority vests in the Department of Revenue, Government of Tripura, to direct payment of, or deduction at source for the purpose of payment of sales tax from the bills of any person who transfers the right to use any goods for any purpose.