2013 (3) TMI 314 - HC - VAT and Sales Tax

Undated notice issued u/s 54(1)(11) of the U.P. VAT Act, 2008 - Notice stating that assessee has without any authority under the Act and the Rules issued tax invoice on which M/s Havells India Ltd. has claimed input tax credit - petitioner seeks a writ in the nature of certiorari quashing the undated notice - Held that - It is not in dispute that the transfer of right to use the trade mark is liable to tax @ 4% as it is to be treated as goods u/s 4(1)(a) of the U.P. VAT Act, read with Schedule II Entry No. 3. The petitioner had transferred the right to use the trade mark for a consideration during the assessment year 2008-09 to respondent no. 3 under the agreement dated 21.11.2007, filed as annexure 1 to the supplementary affidavit. The petitioner had charged tax @ 4% and had also issued tax invoices. The amount of tax charged by it had been deposited with respondent no. 2. Section 22(1) of the Act empowers the selling dealer to issue tax invoices in respect of taxable goods while effecting it s sale, unless such goods are covered by the payment of composition money u/s 6 of the Act. In the present case it is found that the petitioner is a registered dealer who had effected sale of taxable good. It is not one of the goods for which composition money is to be paid and in fact, the petitioner had realized tax @ 4% and deposited the same with respondent no. 2. Thus, the petitioner was entitled to issue tax invoices. The issuance of the tax invoices by the petitioner does not attract any of the penal provisions of Section 54 of the Act. As in the present writ petition it is not called upon to decide question of input tax credit as it can more appropriately be gone into when the question arise moreso when M/s. Havells India Ltd., the licensee, has not challenged the order rejecting the claim of claiming the benefit of input tax credit. Thus the impugned notice filed is wholly without jurisdiction, as the action of the petitioner in issuing tax invoices did not violate any statutory provisions so as to attract the provisions of Section 54(1)(11) of the U.P. VAT Act. Consequently, the notice is hereby quashed.

Summary

Issues:
Challenge to notice under U.P. VAT Act for issuing tax invoices without actual sales.

Detailed Analysis:
The petitioner, a Public Limited Company, transferred the right to use its trade mark to another company during the assessment year 2008-09, receiving a consideration of Rs. 3,79,65,114.00. The petitioner charged tax at 4% and issued tax invoices. The Deputy Commissioner issued a notice under Section 54(1)(11) of the U.P. VAT Act, alleging that tax invoices were issued without actual sales, which could attract a penalty.

The petitioner contended that the transfer of the right to use the trade mark falls under taxable goods at 4% as per the U.P. VAT Act. The licensee was entitled to sub-license rights under the agreement, allowing the petitioner to issue tax invoices. The respondent argued that tax input credit cannot be claimed for transfers of the right to use goods, as per the U.P. Amending Act 11 of 2009.

The Court noted that the transfer of the right to use the trade mark was taxable at 4% and that the petitioner had complied with the Act by charging and depositing tax. The petitioner, being a registered dealer, was authorized to issue tax invoices for taxable goods. The Court found that the issuance of tax invoices did not violate any statutory provisions under Section 54 of the Act.

Regarding the argument on tax input credit, the Court stated that the question was not directly relevant to the current case, especially since the licensee had not challenged the rejection of their input tax credit claim. The Court concluded that the notice issued by the Deputy Commissioner was without jurisdiction, as the petitioner's actions did not breach any statutory provisions to warrant a penalty under Section 54(1)(11) of the U.P. VAT Act. Consequently, the notice was quashed, and the writ petition was allowed.