9911796707
TMI Blog2006 (11) TMI 608X X X X Extracts X X X X X X X X Extracts X X X X ..... Commissioner (Appeals), Trade Tax, Moradabad. The Deputy Commissioner (Appeals), Trade Tax, Moradabad vide order dated December 8, 1998 allowed the appeal and deleted the tax levied under section 3F of the Act. Commissioner of Trade Tax filed appeal before the Tribunal. The Tribunal by the impugned order, rejected the appeal. Heard learned counsel for the parties. Learned Standing Counsel submitted that even though, the Tribunal has observed that, the counsel for the opposite party submitted that though, the trucks were transferred, still held that the present case did not come within the purview of section 3F of the Act, is erroneous. He submitted that merely because, under the agreement, it has been agreed that the payment towards ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reported in [2000] 119 STC 182; [2000] 6 SCC 12 and other decisions of the apex court and held as follows (page 126 of 3 VST; page 123 of 145 STC): In the State of Uttar Pradesh v. Union of India [2003] 130 STC 1 (SC); [2003] JT 1 SC 574; [2003] 3 SCC 239 it was also held: 'Handing over of possession is not sine qua non of completing the transfer of the right to use any goods, as was held by a Constitution Bench of this court in 20th Century Finance Corpn. Ltd. v. State of Maharashtra [2000] 119 STC 182 (SC); [2000] 6 SCC 12. . . . . Once DOT connects the telephone line of the assigned number of the subscriber to the area exchange, access to other telephones is established. There cannot be denial of the fact that giving such an acc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for levy of tax on the transfer of right to use any goods. We are, therefore, of the view that where the goods are in existence, the taxable event on the transfer of the right to use goods occurs when a contract is executed between the lessor and the lessee and situs of sale of such a deemed sale would be the place where the contract in respect thereof is executed. Thus, where goods to be transferred are available and a written contract is executed between the parties, it is at that point situs of taxable event on the transfer of right to use goods would occur and situs of sale of such a transaction would be the place where the contract is executed.' (emphasis Here italicised ours) In determining the situs of the transfer of the right ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inery in favour of contractors . . . The effective control of the machinery even while the machinery was in use of the contractor was that of the respondent-company, the contractor was not free to make use of the machinery for the works other than the project work of the respondent or . . . (page 116 of STC; 315 of SCC)' But in the case of Aggarwal Brothers v. State of Haryana [1999] 113 STC 317 (SC); [1999] 9 SCC 182 when the assessee had hired shuttering to favour of contractors to use it in the course of construction of buildings it was found that possession of the shuttering materials was transferred by the assessee to the customers for their use and therefore, there was a deemed sale within the meaning of sub-clause (d) of claus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... There must be a consensus ad idem as to the identity of the goods; (c) The transferee should have a legal right to use the goods consequently all legal consequences of such use including any permissions or licenses required therefor should be available to the transferee; (d) For the period during which the transferee has such legal right, it has to be the exclusion to the transferor this is the necessary concomitant of the plain language of the statute viz., a 'transfer of the right to use' and not merely a licence to use the goods; (e) Having transferred the right to use the goods during the period for which it is to be transferred, the owner cannot again transfer the same rights to others. I have perused the order ..... X X X X Extracts X X X X X X X X Extracts X X X X
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