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2013 (12) TMI 443 - HC - VAT and Sales TaxRight of assessee to claim fresh relief even if no appeal / revision filed against the order of lower authority - Chargeability of tax - HELD THAT - As to the right of the assessee to question the very applicability of Section 3A of the Tamil Nadu General Sales Tax Act to the transaction of the assessee in a revision filed by the State, even in the absence of any revision filed by the assessee, we agree with the submission of the learned senior counsel appearing for the assessee. In the background of the well settled principles laid down as regards the jurisdiction of this Court, that the ultimate endeavour in recognising such a right in the opposite party in a tax litigation being one of arriving at appropriate and correct tax adjustment, we hold that the assessee is entitled to make its submission on the very applicability of Section 3A of the Act to the facts of this case. Liability to sales tax - Exemption under Section 3A(2)(a) of the Tamil Nadu General Sales Tax Act - Transfer of possession accompanied by transfer of right to use - Leasing of ship - Held that - there was no transfer of right to use to have an effective control of the Vessel by the charterer under the time charter so as to attract the charge under the provisions of Section 3A of the Act - mere fact that the agreement had been entered into and that the assessee had been paid the hire charges, does not, per se, bring the transaction within the scope of Section 3A of the Act - amendment to the Central Sales Tax Act in including the transfer of right to use any goods as deemed sale was brought in under the definition of sale in Section 2(g) under the Finance Act (No.20 of) 2002, effective from 11th May 2002. In any event, even otherwise, the enlarged definition of sale , available on and from 11th May 2002, can have no relevance to the transaction of time charter for considering the same even by way of a deduction under Section 3A(2)(a) of the Tamil Nadu General Sales Tax Act. Question of considering a deduction under Section 3A(2)(a) of the Act does not arise and it would be in excess of what is contemplated under Section 3A of the Act, or for that matter, beyond the legislative power of a State - This is the reproduction of Section 4 of the Central Sales Tax Act. Thus the location of goods at the time of sale determines the jurisdiction of that State to levy sales tax under the State Sales Tax Act. Thus in the case of ascertained goods, the place where the goods are at the time of contract, is the State which has the jurisdiction to assess the transaction. In the case of unascertained or future goods, the State where appropriation takes place, would be the competent State to impose tax. As on the date of sale relating to the assessment years 1993-94 to 1997-98, the agreement was for named ships which were nowhere near the jurisdiction of the State of Tamil Nadu, to levy sales tax on the transactions under the provisions of Tamil Nadu General Sales Tax Act, treating them as local sales. The mere fact that the contract is entered into in Tamil Nadu, or for that matter the assessee has sought for registration under the State Act, by itself, would not confer jurisdiction on the State to impose tax on the sale of the assets located outside the territorial application of the Tamil Nadu General Sales Tax Act. Except for contending that the sale of ships is assessable under the Tamil Nadu General Sales Tax Act, no material is placed before us to challenge the findings of the Tribunal on the sale of specifically named ships. In the circumstances, we agree with the assessee that having regard to the fact that the agreement is with reference to the sale of specific Vessel by name, we have no hesitation in holding that all these being specific goods located outside the State of Tamil Nadu, the transactions are not chargeable to tax - In the light of the above, cancelling the assessment, the question of levy of penalty does not arise - Decided against Revenue.
Issues Involved:
1. Applicability of Section 3A of the Tamil Nadu General Sales Tax Act, 1959 on time charterparty agreements. 2. Whether the leasing of ships falls under Section 3A of the Tamil Nadu General Sales Tax Act, 1959. 3. Taxability of the sale of ships under the Tamil Nadu General Sales Tax Act, 1959. 4. Validity of the penalty levied under Section 12 of the Tamil Nadu General Sales Tax Act, 1959. Issue-wise Detailed Analysis: 1. Applicability of Section 3A of the Tamil Nadu General Sales Tax Act, 1959 on time charterparty agreements: The court examined whether the time charterparty agreements between the assessee and M/s. Poompuhar Shipping Corporation constituted a transfer of right to use goods, thereby attracting tax under Section 3A of the Tamil Nadu General Sales Tax Act, 1959. The court noted that under time charterparty agreements, the possession and control of the vessel remain with the owner, and the charterer merely has the right to use the vessel for a specific period. The court referred to various judgments, including the Supreme Court's decision in British India Steam Navigation Co. Ltd. Vs. Shanmughavilas Cashew Industries, which clarified that terms like "let," "hire," "delivery," and "redelivery" in time charterparty agreements do not imply a transfer of possession or effective control to the charterer. Consequently, the court held that the time charterparty agreements did not attract the provisions of Section 3A of the Tamil Nadu General Sales Tax Act, 1959. 2. Whether the leasing of ships falls under Section 3A of the Tamil Nadu General Sales Tax Act, 1959: The court analyzed whether the leasing of ships under time charterparty agreements could be considered a transfer of the right to use goods, thereby falling under Section 3A of the Tamil Nadu General Sales Tax Act, 1959. The court reiterated that for a transaction to be considered a transfer of the right to use goods, there must be a transfer of possession and effective control. Since the time charterparty agreements did not involve such a transfer, the leasing of ships under these agreements did not fall under Section 3A of the Tamil Nadu General Sales Tax Act, 1959. 3. Taxability of the sale of ships under the Tamil Nadu General Sales Tax Act, 1959: The court examined the taxability of the sale of ships under the Tamil Nadu General Sales Tax Act, 1959. The court noted that the location of the ships at the time of sale determines the jurisdiction for tax purposes. In this case, the ships were located outside Tamil Nadu at the time of sale. The court referred to Section 2(n) of the Tamil Nadu General Sales Tax Act and concluded that the sales of ships were not taxable under the Tamil Nadu General Sales Tax Act, 1959, as the ships were outside the territorial jurisdiction of Tamil Nadu at the time of sale. 4. Validity of the penalty levied under Section 12 of the Tamil Nadu General Sales Tax Act, 1959: Given that the court held that the transactions did not attract the provisions of Section 3A of the Tamil Nadu General Sales Tax Act, 1959, the penalty levied under Section 12 of the Act was also deemed invalid. The court noted that the assessment itself was not sustainable, and consequently, the penalty imposed based on such assessment was also not valid. Conclusion: The court dismissed the Tax Case Revisions filed by the Revenue, holding that the time charterparty agreements did not constitute a transfer of the right to use goods under Section 3A of the Tamil Nadu General Sales Tax Act, 1959. The court also held that the sale of ships was not taxable under the Tamil Nadu General Sales Tax Act, 1959, as the ships were located outside Tamil Nadu at the time of sale. The penalty levied under Section 12 of the Act was also deemed invalid. The Writ Appeal filed by the assessee was allowed, and the assessment order for the assessment year 1997-98 was set aside with a direction to re-do the issue in light of the court's observations.
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