2009 (2) TMI 748 - HC - VAT and Sales Tax

Liability to payment of sales tax - Held that - A patient reading of the agreement, as a whole leaves no room for doubt that the agreement was not an agreement for taking the cranes on lease. Because of the fact that the agreement between the parties concerned did not constitute a lease within the meaning of the relevant provisions of law, the respondent-Corporation cannot realize and/or deduct tax, at source, from the bills of the petitioner, the amount payable to the petitioner, for the work, which the petitioner might have carried out on the strength of the agreement, in question. Thus this writ petition is disposed of making it clear to the respondents that the respondents shall not make any deduction, at source, from the bills of the petitioner, of any amount(s), which form the subject-matter of controversy in this writ petition.

Issues Involved:
1. Nature of the contract between the petitioner and the respondent-Corporation.
2. Applicability of the Assam Value Added Tax Act, 2003.
3. Definition and scope of "sale" and "lease" under the Assam Value Added Tax Act, 2003.
4. Interpretation of the 46th Amendment to the Constitution of India.

Detailed Analysis:

1. Nature of the Contract Between the Petitioner and the Respondent-Corporation
The petitioner entered into a contract with the respondent-Corporation for hiring cranes. The petitioner contended that the contract was for providing services and not for transferring the right to use the cranes. The agreement specified that the cranes were to be made available for carrying out the Corporation's operations and not by way of lease or transfer of rights for use of the cranes. The contract required the petitioner to provide drivers and operators, bear expenses for fuel and repairs, and ensure the cranes were available at the appointed time and place. The cranes were not handed over to the respondent-Corporation, and the Corporation did not exercise control over them.

2. Applicability of the Assam Value Added Tax Act, 2003
The petitioner argued that the transactions did not amount to a "sale" under the Assam Value Added Tax Act, 2003, and thus, tax should not be deducted at source. The respondent-Corporation, however, treated the transactions as "sale" and deducted tax accordingly. The court examined whether the contract constituted a transfer of the right to use the cranes, which would attract sales tax under the Act.

3. Definition and Scope of "Sale" and "Lease" Under the Assam Value Added Tax Act, 2003
The court referred to sections 2(33) and 2(19) of the Assam Value Added Tax Act, 2003, which define "sale" and "lease" respectively. "Sale" includes any transfer of the right to use any goods under an "operating lease." An "operating lease" is any lease other than a financial lease. The court emphasized that the transfer of the right to use goods is a condition precedent for the imposition of sales tax. The court concluded that the contract did not constitute a lease or transfer of the right to use the cranes, as the effective control and custody of the cranes remained with the petitioner.

4. Interpretation of the 46th Amendment to the Constitution of India
The court discussed the 46th Amendment, which expanded the definition of "tax on sale or purchase of goods" to include the transfer of the right to use any goods. The court referred to several judgments, including 20th Century Finance Corpn. Ltd. v. State of Maharashtra and Bharat Sanchar Nigam Ltd. v. Union of India, to interpret the amendment. The court noted that the amendment allows states to impose sales tax on deemed sales, including the transfer of the right to use goods. However, the court clarified that the transfer of the right to use goods requires parting with possession and effective control of the goods, which was not the case in the present contract.

Conclusion:
The court concluded that the contract between the petitioner and the respondent-Corporation did not constitute a lease or transfer of the right to use the cranes. Therefore, the transactions were not subject to sales tax under the Assam Value Added Tax Act, 2003. The court directed the respondents not to deduct tax at source from the petitioner's bills related to the contract in question. The writ petition was disposed of with no order as to costs.

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