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2016 (12) TMI 821 - HC - VAT and Sales TaxLevy of VAT - Franchise agreement - whether Franchisee agreement amounts to transaction of transfer of the right to use goods for the purpose of levy of Value Added Tax (in short VAT ) or the factum that petitioner since paying service tax, whether will stand absolved from liability of tax under VAT Act, 2008 ? - Held that - Right to use property, i.e., Brand name for consideration is a sale under the definition of sale in VAT Act, 2008 read with Article 366 (29A) of Constitution and on amount of consideration, VAT is chargeable. If there is simultaneously other activities which may come within the definition of service , petitioner may be liable to pay service tax on that or those aspect(s) but consideration of transfer of right to use Brand name, i.e., goods, is exigible to VAT having satisfied the definitions of goods and sale . Grant of non-exclusive licence to Franchisee for use of Brand name of petitioner under the agreement for consideration is exigible to tax under VAT Act, 2008. If there is a composite transaction, part whereof amounts to sale of goods and other aspects amount to service, both taxes on different aspects are leviable and dominant intention test is no more available. Petition dismissed - decided against petitioner.
Issues Involved:
1. Whether the grant of Non-Exclusive License to Franchise for use of the brand name amounts to a transaction for transfer of rights to use goods for the purpose of levying VAT. 2. Whether the grant of non-exclusive license to Franchise for use of the brand name comes under the provisions of Service Tax or VAT/sales tax, and if both, which part is under Service Tax Act and which part is under VAT Act, 2008. 3. Whether the respondent is justified in assessing VAT on such use of the trademark without adjudicating the legal issues raised by the petitioner. Issue-wise Detailed Analysis: Issue 1: Transaction for Transfer of Rights to Use Goods for VAT Levy The petitioner, M/s G.D. Goenka (P) Ltd., challenged notices and assessment orders issued by the Deputy Commissioner, Trade Tax Circle-II, Agra, under the U.P. Value Added Tax Act, 2008 (VAT Act, 2008). The primary contention was whether the grant of a non-exclusive license to a franchise for using the brand name under a Franchisee Agreement amounts to a transaction for the transfer of rights to use goods, thereby attracting VAT. The court referred to the definitions of "business," "dealer," "goods," "lease," "lessee," "lessor," "place of business," and "sale" under Section 2 of the VAT Act, 2008. It also considered Article 366(29A) of the Constitution, which includes the transfer of the right to use any goods for any purpose for valuable consideration as a "deemed sale." The court cited the Constitution Bench judgment in 20th Century Finance Corpn. Ltd. vs. State of Maharashtra, which clarified that the taxable event in the transfer of the right to use goods occurs when the contract is executed, regardless of where the goods are used. Thus, the court concluded that the grant of a non-exclusive license to use a brand name is a transfer of the right to use goods and is exigible to VAT under the VAT Act, 2008. Issue 2: Applicability of Service Tax and VAT The court examined whether the transaction falls under the provisions of Service Tax or VAT/sales tax, or both. It referred to the judgment in Bharat Sanchar Nigam Ltd. and another vs. Union of India, which discussed the nature of transactions involving goods and services and the applicability of both taxes. The court held that if a transaction has components of both sale of goods and service, both taxes are leviable on their respective parts. The dominant intention test, which previously determined the primary nature of the transaction, is no longer applicable. Thus, the court concluded that the grant of a non-exclusive license to use a brand name involves both goods and services, making it liable for VAT on the sale aspect and service tax on the service aspect. Issue 3: Justification of VAT Assessment Without Adjudicating Legal Issues The petitioner argued that the respondent assessed VAT without adjudicating the legal issues raised by the petitioner. However, given the court's conclusions on the first two issues, it found this argument redundant. The court held that the assessment of VAT was justified, as the transaction involved the transfer of the right to use goods, which falls under the VAT Act, 2008. Conclusion: The court dismissed both writ petitions, holding that the grant of a non-exclusive license to use the brand name for consideration is exigible to VAT under the VAT Act, 2008, and that both VAT and service tax can be levied on different aspects of a composite transaction. The court found no merit in the petitioner's arguments and upheld the VAT assessments.
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