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2015 (2) TMI 705 - HC - VAT and Sales TaxLevy of VAT on rent as right to use - leasing of machinery and vehicles - Levy and point of tax - Whether in view of Sections 105 and 106 read with Section 3 of the Delhi Value Added Tax Act, 2004, lease rentals paid on or after 1st April, 2005 can be taxed under the aforesaid Act even when the lease agreement was executed between the parties on or before 31st March, 2005? - Held that - Principle of ultra vires would not be applicable when challenge made is that one provision of the Act is ultra vires of another. Thus, constitutional validity of Section 3, or for that matter Section 2(n) of Act, 2002, was not challenged and even the doctrine of reading down was not relied. The High Court observed that in terms of the two provisions, lease instalments paid after 15th September, 2004 would be subject to tax even when the agreements were prior in point of time. The term sale as defined in Section 2(n) of Act 2000, it was distinguished, would include deferred payment, i.e. when payment is staggered and not at one time. In such cases, right to use accrues in favour of the lessee when he pays rental regularly and in terms of the agreement. In this context, reference was also made to clause 29A inserted to Article 366 which treats certain transactions as sale by deeming effect. Thus, the said decisions support and affirm our reasoning. The term sale as defined in Section 2(1)(zc) clause (vi) would include transfer of right to use goods. Section 2(1)(zm) defines turnover to be aggregate of the sale price which as per clause (zd)(iii) to Section 2(1) means valuable consideration or hire purchase amount received or receivable for such transfer irrespective of whether or not the rights to use goods is for specified period. Rule 4 of the DVAT Rules, 2004, in clause (b) stipulates that in case of transfer of right to use goods, not being hire purchase agreement or instalment sale agreement, is the proportion or sale price, i.e. lease rental due and payable during the relevant tax period. - Decided against the assessee. The date or time of payment may be different and subsequent to the taxable event, i.e., the date on which transfer of right to use goods is made. In Bombay Tyre International Limited (1983 (10) TMI 51 - SUPREME COURT OF INDIA), the Supreme Court held that levy of tax in our country has a status of constitutional concept, but the point of collection, i.e., time of collection would depend upon the statute. The statute could, therefore, declare the point at which the tax is to be collected, which need not synchronise with the taxable event and can be different in point of time. They do not relate to power and authority of taxation under the Act. They relate to the right of a State to tax, without violating and breaching the limitation and restriction not to tax the inter-State sales. It is in this context it has been held that the levy of tax is not on use of goods, but on transfer of right to use goods. Right to use goods is the resultant effect of transfer of right to use goods and in the context of sub-clause (d) to clause 29A of Article 366 for the purpose of deciding which State and whether a particular State has the right to tax the said transfer, observations have been made. The aforesaid legal position becomes clear from the decision of the Supreme Court in the case of Bharat Sanchar Nigam Limited and Another versus Union of India and Others, 2006 (3) TMI 1 - Supreme court . Levy of penalty - Held that - there is merit in the contention of the appellant that there is inherent contradiction in the order passed by the Tribunal. - enalty can only be imposed under the said provision when it is established that the return filed by the assessee is false, misleading or deceptive in material particulars or the assessee omits from a return any matter or thing without which return is false, misleading or deceptive in a material particular. - Tribunal was not right in directing levy of penalty @ 20% under Section 86(10) of the Act, after recording the finding that the appellant assessee had a reasonable cause - levy of penalty waived.
Issues Involved:
1. Taxability of lease rentals under the Delhi Value Added Tax Act, 2004 for lease agreements executed before 1st April 2005. 2. Imposition of penalty under Section 86(10) of the Delhi Value Added Tax Act, 2004. Detailed Analysis: 1. Taxability of Lease Rentals: The primary issue in STA Nos. 47/2014 and 49/2014 was whether lease rentals paid on or after 1st April 2005 could be taxed under the Delhi Value Added Tax Act, 2004, for lease agreements executed before 1st April 2005. The appellant argued that the taxable event is the transfer of the right to use goods, which occurred when the master agreement was executed. They contended that lease rentals payable after 1st April 2005 should be taxed under the Delhi Sales Tax on Right to Use Goods Act, 2002, at 4%, rather than the higher rates under the 2004 Act. The court examined Sections 105 and 106 of the Delhi Value Added Tax Act, 2004. Section 105(1)(b) states that the tax applies to the extent that the right to use goods is exercised after 1st April 2005. The court interpreted this to mean that lease rentals paid after this date are taxable under the 2004 Act, regardless of when the lease agreement was executed. This interpretation was supported by the legislative intent to tax the exercise of the right to use goods after the specified date, not the date of the agreement itself. The court also referred to the decision in Infrastructure Leasing and Financial Services Limited vs. Commissioner of Value Added Tax and Others, which supported the view that lease rentals paid after the enforcement of a new tax regime should be taxed under the new regime. 2. Imposition of Penalty: In STA No. 50/2014, the issue was the imposition of a penalty under Section 86(10) of the Delhi Value Added Tax Act, 2004. The Tribunal had reduced the penalty from 100% to 20%, acknowledging that the appellant had a reasonable cause for filing returns under the old tax rate of 4%. The court found an inherent contradiction in the Tribunal's order. The Tribunal had acknowledged that the returns were not false, misleading, or deceptive, yet imposed a penalty. The court referred to the decision in Jatinder Mittal Engineers and Contractors vs. Commissioner of Trade & Tax, which clarified that a penalty under Section 86(10) could only be imposed if the returns were false, misleading, or deceptive in material particulars. The court noted that the Revenue initially asserted that the agreements were sales by instalments, not transfers of the right to use. However, the Additional Commissioner later accepted that these were not hire purchase contracts, but still taxed the rentals at 12.5%. Given the reasonable cause and lack of false or misleading returns, the court held that the penalty under Section 86(10) was not justified. Conclusion: - The appeals in STA Nos. 47/2014 and 49/2014 were dismissed, affirming that lease rentals paid after 1st April 2005 are taxable under the Delhi Value Added Tax Act, 2004. - The appeal in STA No. 50/2014 was allowed, ruling that the penalty under Section 86(10) was not justified, given the reasonable cause and absence of false or misleading returns.
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