2016 (11) TMI 550 - HC - VAT and Sales Tax

Jurisdiction of AO - levy of tax under U.P. VAT Act, 2008 on Royalty - palace of execution of contract - franchise service u/s 65(105)(zze) of Finance Act, 1994 - Reverse charge mechanism - whether the stand of the petitioner that notice is without jurisdiction since agreement between petitioner and JFL was executed outside India, therefore, AO has no jurisdiction to levy tax on transaction executed outside India is justified? Held that - There is no averment regarding mode of communication adopted by petitioner communicating its acceptance. There is not even a whisper as to how and in what manner communication of acceptance was made. In absence of any specific pleading so as to attract exceptions with regard to communication, we have no option but to hold that acceptance will be completed only when it is communicated to offeror and that communication obviously would be at a place wherefrom offer was made. That be so, the agreement can be said to become a concluded contract and executed when it is communicated to Proposer/ Offeror at NOIDA wherefrom offer was made. The ultimate result would be that the very foundation of argument that taxing authorities in Uttar Pradesh had no jurisdiction, disappears and vanishes. It cannot thus be said that impugned orders are patently without jurisdiction - Quantum of assessment made by Assessing Officer is not under challenge. Assessment was challenged before us only on the ground of jurisdiction, i.e., transfer of right to use goods came into effect outside India and, therefore, taxing authorities in State of U.P. have no jurisdiction to demand any tax, which question we have already answered against petitioner. We, therefore, leave it open to petitioner that if there is any dispute with regard to quantum of assessment made by Assessing Officer, same being a question of fact, it will be open to petitioner to raise such dispute by filing appeal under the statute. Jurisdiction of AO not questionable and is justified - petition dismissed - decided against petitioner.

Issues Involved:
1. Jurisdiction of the Assessing Officer.
2. Taxability under U.P. Value Added Tax Act, 2008.
3. Definition and application of "dealer" and "place of business".
4. Validity and place of execution of the franchise agreement.
5. Applicability of judicial precedents and statutory provisions.

Issue-wise Detailed Analysis:

1. Jurisdiction of the Assessing Officer:
The petitioner challenged the assessments made by the Deputy Commissioner, Commercial Tax, Noida, on the grounds of lack of jurisdiction, claiming the agreement was executed outside India. The court examined the jurisdiction issue, emphasizing that the place where the right to use goods is exercised is crucial, as defined under Section 2(x) of the VAT Act, 2008.

2. Taxability under U.P. Value Added Tax Act, 2008:
The petitioner argued that the royalty paid by JFL for using the trademark "DOMINO'S PIZZA" should not be taxable under the VAT Act, 2008, as it was already subject to service tax. The court referred to the statutory definitions and judicial precedents to determine if the transaction was taxable under the VAT Act. It was concluded that the right to use goods was exercised in U.P., making it taxable under the VAT Act, 2008.

3. Definition and Application of "Dealer" and "Place of Business":
The court analyzed the definitions of "dealer" and "place of business" under the VAT Act, 2008. It was determined that the petitioner fell within the definition of a dealer as the right to use the trademark was exercised in U.P. The court emphasized that the place of business includes any place where the right to use goods is exercised, thus validating the jurisdiction of the U.P. tax authorities.

4. Validity and Place of Execution of the Franchise Agreement:
The petitioner claimed the franchise agreement was executed in the Netherlands, thus outside the jurisdiction of U.P. tax authorities. The court scrutinized the agreement and found that the offer was made by Domino's Pizza India Limited at Noida, and the acceptance was communicated to Noida, making it the place of execution. Therefore, the agreement was concluded in Noida, within the jurisdiction of U.P. tax authorities.

5. Applicability of Judicial Precedents and Statutory Provisions:
The court referred to the Constitution Bench decision in 20th Century Finance Corpn. Ltd. and other relevant judicial precedents to determine the taxable event and the place of business. It concluded that the place of execution of the agreement is crucial, and since the agreement was concluded in Noida, the U.P. tax authorities had jurisdiction. The court also clarified that the statutory provisions under the VAT Act, 2008, were applicable, and the transaction was taxable in U.P.

Conclusion:
The court dismissed the writ petitions, holding that the assessments made by the Deputy Commissioner, Commercial Tax, Noida, were within jurisdiction. The place of execution of the franchise agreement was determined to be Noida, making the transaction taxable under the U.P. VAT Act, 2008. The petitioner was advised to file an appeal if there were disputes regarding the quantum of assessment.

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