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TMI Blog2001 (2) TMI 999X X X X Extracts X X X X X X X X Extracts X X X X ..... ioner allowed the appeals accepting the claim of the assessee. However, the Commissioner of Taxes revised the said appellate orders. Hence, the special appeals by the assessee. 3.. In the case of tax revision cases, the machinery was imported and leased to the lessee's company in December, 1983. According to the assessee, M/s. Wimco Limited, Bombay, leased out the imported machinery to M/s. Clean Foods Corporation, Bangalore, and the lease rent was also being paid by the said Corporation to M/s. Wimco Limited, Bombay, directly. Therefore, it has not been registered in the books of M/s. Wimco Limited, Madanapalle, which is a branch of M/s. Wimco Limited, Hyderabad. However, the assessing officer levied the tax on the lease rentals observing that though the lease agreements are between the registered offices, the transactions of leasing concluded in Andhra Pradesh, which attracts the tax liability under section 5-E of the APGST Act from July 1, 1985. On appeal, the Appellate Deputy Commissioner confirmed the view of the assessing officer. According to him, the transfer of the right to use took place in the State of Andhra Pradesh and every month is a separate unit, hence the leas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ax revision cases filed by the department. The learned counsel also referred to various provisions of the APGST Act relevant for the issue in question and contended that the taxable event is the transfer of the right to use the goods and not the actual using of the goods. It is also stated that clause (b) of section 5-E was struck down by the apex Court. Therefore, the situs of the goods and its user is not relevant for the purpose of section 5-E of the A.P.G.S.T. Act. The learned counsel also referred to the following judgments in support of his contention: Govind Saran Ganga Saran v. Commissioner of Sales Tax v. [1985] 60 STC 1 (SC), State Bank of India v. State of Andhra Pradesh [1988] 70 STC 215 (AP), Rashtriya Ispat Nigam Ltd. v. Commercial Tax Officer [1990] 77 STC 182 (AP), I.T.C. Classic Finance and Services v. Commissioner of Commercial Taxes [1995] 97 STC 330 (AP) and 20th Century Finance Corpn. Ltd. v. State of Maharashtra [2000] 119 STC 182 (SC). 6.. The learned Government Pleader, on the other hand, supported the order of the Commissioner of Commercial Taxes. According to the learned counsel, the taxable event is the actual user and the situs for the levy of tax ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urity for payment of price, be deemed to be a sale. ......................................... Explanation IV.-A transfer of right to use any goods for any purpose (whether or not for a specified period) for cash, deferred payment or other valuable consideration shall be deemed to be a sale." "Section 2(1)(q): 'tax' means a tax on the sale or purchase of goods payable under this Act and includes,- (i) a tax on the transfer, otherwise than in pursuance of a contract, of property in any goods for cash, deferred payment or other valuable consideration; (ii) a tax on the transfer of property in goods (whether as goods or in some other form) involved in the execution of a works contract (iii) a tax on the delivery of goods on hire purchase or any system of payment by instalments; (iv) a tax on the transfer of the right to use any goods for any purpose (whether or not for a specified period) for cash, deferred payment or other valuable consideration; (v) a tax on the supply of goods by any unincorporated association or body of persons to a member thereof for cash, deferred payment or other valuable consideration; or (vi) a tax on the supply, by way of or as part of any ser ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... person to another for cash or for deferred payment, or for any other valuable consideration in the course of trade or business. The explanation IV was inserted by Act 18 of 1985 so as to include within the term "sale", a transfer of the right to use the goods for any purpose for cash or deferred payment. For the tax in this context means tax on the transfer of the right to use the goods for any purpose. Section 5-E clearly refers to the taxable event as the transfer of the right to use the goods but not the use of the goods. This was made clear further by the insertion of subsection (b) to section 5-E, which was inserted in view of the judgment of this Court in I.T.C. Classic Finance and Services [1995] 97 STC 330; (1995) APSTJ 150. By the said clause (b) the situs of the transaction was shifted to within the State. Whenever the goods are used within the State irrespective of place where the agreement-whether written or oral for such transfer of the right is made. But none of the above provisions refers to the using of the goods as a taxable event. In the absence of any such provision either expressed or implied, it is not open to the Commissioner of Commercial Taxes to treat t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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