9911796707
TMI Blog2008 (2) TMI 603X X X X Extracts X X X X X X X X Extracts X X X X ..... was delivered by S.H. KAPADIA J.-Leave granted. This civil appeal filed by the assessee is directed against the judgment and order dated October 19, 2006 passed by the High Court of Judicature at Allahabad in three Trade Tax Revision Nos. 691, 692 and 693 of 2006 by which it has been held that the transaction of transfer of the right to use was a local sale under section 3F of the U.P. Trade Tax Act, 1948 (for short, "the 1948 Act"). The assessee is a company incorporated under the Companies Act, 1956 having its registered office at Panjim, Goa. It is engaged in the business of leasing and financing plants and machinery. In this civil appeal we are concerned with the assessment years 1994-95, 1995-1996 and 1996-97. While ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uipments which were leased out to it prior to its purchase by the assessee. The A.O. came to the conclusion that the equipment was purchased prior to the execution of the lease dated March 24, 1992. According to A.O. in view of the said clause in the said lease the assessee was called upon to produce the agreement/arrangement either oral or written pursuant to which the equipment stood purchased by the assessee. According to A.O. despite opportunity the assessee failed to produce such agreement/arrangement. Further, the A.O. also relied upon an invoice dated February 26, 1992 under which the assessee had purchased boilers and turbines from Punjab Chemicals and Pharmaceuticals Ltd., Dist. Patiala, Punjab, in which there was reference to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessee before the Tribunal stood dismissed. The tax revisions, filed by the assessee before the High Court, have also been dismissed. Hence this civil appeal. In the case of 20th Century Finance Corpn. Ltd. [2000] 6 SCC 12 See [2000] 119 STC 182 (SC) the Constitution Bench of this court by majority held that delivery of goods may be one of the elements of transfer of right to use, but the same would not be the condition precedent for a contract of transfer of right to use goods. That, where a party has entered into a formal contract and the goods are available for delivery, irrespective of the place where they are located, the situs of such sale would be where the property in goods passes, namely, where the contract is entered into (See: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on October 29, 1991. However, the said letter does not indicate the place, namely, Mumbai. It is important to note that this letter of intent was produced for the first time after 12 years by the assessee. No explanation has been given for not producing the said letter earlier, particularly, when the department had repeatedly called upon the assessee to produce any agreement/arrangement prior to the lease and pursuant to which the purchase orders dated November 28, 1991 were placed by the assessee with the Punjab Chemicals and Pharmaceuticals Ltd. Moreover, in the invoice dated February 26, 1992, M/s. Kesar Enterprises Limited Baheri is described as lessee. On that date there was no lease. The lease has been executed only on March 24, 1992 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he record indicates that the letter of intent surfaced after 12 years at the instance of the assessee in order to align this case with the facts in the case of 20th Century Finance Corpn. Ltd. [2000] 6 SCC 12 See [2000] 119 STC 182 (SC). For the aforestated reasons, we are in agreement with the view expressed by the Tribunal that the entire arrangement was got up in order to project the impugned transaction as an outside sale so that the said transaction does not come within the ambit of section 3F of the 1948 Act. The High Court has given reasons with which we do not agree in entirety though we agree with the operative part of its judgment dismissing the appeal of the assessee. For the aforestated reasons, in the facts of the present cas ..... X X X X Extracts X X X X X X X X Extracts X X X X
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