2013 (5) TMI 540 - HC - VAT and Sales Tax

Transfer of right to use the goods - Exigible to sales tax - Whether hiring of cinematographic equipments would amount to transfer of right to use the goods for cash, exigible to sales tax under Section 3-A of the Tamil Nadu General Sales Tax Act, (in short, TNGST Act )? Held that - Whether a transaction is a transfer of right to use goods or a service is essentially a question of fact, which has to be determined in each case, having regard to the terms of the contract. As pointed out earlier, in the present case, the assessee(s) have not produced any document/agreement to show that the assessee(s) retained possession and control over the Cinematographic equipments leased out. In the absence of any material evidence, we find no sufficient reasons to upset the concurrent findings recorded by the authorities and the Tribunal and questions of law are answered accordingly. Whether the Tribunal is justified in upholding the penalty, when the question of liability to tax itself is a debatable issue? Held that - Assessment order was made based upon the registers seized from the premises of the assessee(s), which were inspected. Even though the Department contends that the assessee(s) have not maintained proper accounts, the assessment was made based on various registers. In Appollo Saline Pharmaceuticals (P) Ltd. Vs. Commercial Tax Officer (FAC) and others, 2001 (10) TMI 1100 - MADRAS HIGH COURT , this Court held where the assessment was based on return and accounts, penalty is not leviable. Applying the ratio of the said decision, in the present case, even though the assessee(s) have not maintained the accounts, the assessment was made based on the registers seized from the premises of the assessee(s) and therefore the penalty cannot be levied. The penalty levied on the assessee(s) are not sustainable and set aside.

Summary

Issues Involved:
1. Whether the ingredients of Section 3-A of the TNGST Act, 1959, are satisfied to fasten liability to sales tax on deemed sales.
2. Whether the Tribunal is justified in upholding the penalty when the question of liability to tax itself is a debatable issue.
3. Whether in the absence of a dishonest intention to evade payment of sales tax, the penalty imposed can be upheld by the Tribunal.
4. Whether, in the absence of a written agreement, the case of the petitioner can be accepted.
5. Whether the conclusion of the Tribunal that only the Cameraman/Assistant Cameraman will operate the camera and other cinematograph equipment is in the nature of a special pleading, not borne out on the basis of the materials on record.

Detailed Analysis:

1. Ingredients of Section 3-A of the TNGST Act, 1959:
The primary issue was whether the hiring of cinematographic equipment constituted a "transfer of right to use the goods" under Section 3-A of the TNGST Act, thereby making it liable for sales tax. The court examined the definition and scope of "transfer of right to use" as per the TNGST Act and relevant constitutional provisions. It was determined that the transfer of right to use goods involves the transfer of effective control and possession of the goods to the hirer, which was found to be the case with the cinematographic equipment hired out by the assessee(s). The court referenced the Supreme Court's rulings in BSNL Vs. Union of India and 20th Century Finance Corporation Limited v State of Maharashtra to establish that the transaction must include the transfer of effective control and possession to qualify as a "deemed sale."

2. Justification of Penalty by the Tribunal:
The Tribunal had upheld the penalty imposed on the assessee(s) for not registering as dealers and for not paying sales tax on the hiring of cinematographic equipment. The court noted that the penalty is consequential to the assessment order under Section 12(2) of the TNGST Act. Since the assessment was based on registers seized from the premises of the assessee(s), the penalty was considered justifiable. However, the court found that the assessment was made based on the seized registers and not on any other material, thus the penalty was not sustainable as per the precedent set in Appollo Saline Pharmaceuticals (P) Ltd. Vs. Commercial Tax Officer.

3. Absence of Dishonest Intention:
The court examined whether the penalty could be upheld in the absence of a dishonest intention to evade sales tax. Citing the Supreme Court's decision in Hindustan Steel Ltd., the court held that penalty should only be imposed where there is a dishonest intention to evade tax. Since the assessee(s) were previously exempt from tax under the old Section 3-A and the assessment was based on seized registers, the court concluded that there was no dishonest intention and thus, the penalty could not be upheld.

4. Absence of Written Agreement:
The court addressed whether the absence of a written agreement affected the determination of the transfer of right to use the equipment. The Tribunal had held that the lack of a written agreement did not negate the transfer of right to use, as the factual findings indicated that the equipment was used by the hirers without any control from the assessee(s). The court upheld this view, emphasizing that the effective control and possession were transferred to the hirers, making the transaction taxable under Section 3-A.

5. Tribunal's Conclusion on Operation of Equipment:
The court evaluated whether the Tribunal's conclusion that only the Cameraman/Assistant Cameraman operated the equipment was a special pleading not supported by the record. The Tribunal had found that the equipment was operated by the hirers' personnel, indicating a transfer of right to use. The court upheld this finding, noting that the assessee(s) did not provide sufficient evidence to prove that they retained control over the equipment.

Conclusion:
The court concluded that the ingredients of Section 3-A of the TNGST Act were satisfied, making the transactions liable for sales tax. However, the penalty imposed was set aside due to the lack of dishonest intention to evade tax. The appeals were partly allowed, with the substantial questions of law regarding the tax liability answered in favor of the revenue and the questions regarding the penalty answered in favor of the assessee(s).