9911796707
TMI Blog2012 (8) TMI 884X X X X Extracts X X X X X X X X Extracts X X X X ..... ture represents two clearly different and separate contracts, the State would not have the power to disintegrate the contract between that "for service" and "for the sale" components and levy (VAT) tax on the sale component. In the facts of the case a very contentious question of law has indeed arisen to be adjudicated by the statutory authorities and the Tax Board on the basis of the material as to the nature of transaction before them. The Tax Board has on lesser facts in the case granted absolute protection to the assessee therein during the pendency of the assessee's appeal before the Deputy Commissioner (Appeals) and stayed the demand and recovery. Apart from the merits of the petitioner's case, the unexceptional rule of uniformity of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... online registration and examination, staff training, certification and placement of students, conduct of job fairs, advertisements, promotions and media support, etc. For this purpose the petitioner has entered into written agreements with the franchise/affiliates according to which the franchise/affiliates are only granted licence to use the software, information and services provided by the petitioner and the effective control and possession of the trade mark, service mark, trading name, trading style, trade description, design, insignia and logo associated with the name of the petitioner rests solely and exclusively with the petitioner-company. Counsel submits that a survey was conducted by the officers of the Commercial Tax Department ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rder dated April 18, 2012 under sections 25, 55, and 61 of the 2003 Act creating a demand of ₹ 26,47,100 comprising tax of ₹ 8,17,006, interest of ₹ 1,96,081 and penalty of ₹ 16,34,013. Aggrieved of the assessment order dated April 18, 2012, the petitionercompany filed an appeal along with a stay application before the Deputy Commissioner (Appeals) I, Commercial Taxes, Jaipur, who vide order dated June 4, 2012, under section 38(4) of the 2003 Act was pleased to stay the recovery of penalty component of the demand. However, he rejected the stay application relating to the assessment of tax and interest thereon. Aggrieved of the partial rejection of the stay application by the Deputy Commissioner (Appeals) I, Commerc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... liable to tax by the Commercial Tax Officer always remained with the petitioner-company, there was no transfer of the goods in favour of affiliates to constitute a sale simplicitor taxable under the 2003 Act. Counsel submits that in the aforesaid context, in view of the judgment in case of Bharat Sanchar Nigam Ltd. [2006] 3 VST 95 (SC); [2006] 145 STC 91 (SC), the Tax Board has wrongly held that the petitioner-company had no prima facie case or balance of convenience in its favour or would not suffer irreparable loss unless protected during the pendency of the appeal before the Deputy Commissioner (Appeals). Counsel submits that the issue whether there was a stand alone sale of goods and whether tax could be levied where the assessee is pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the assessing officer and the appellate authority or the Tax Board. Consequently I find no force in the submission. However, since in a similar case of Aditya Brake Down Service Appeal No. 377 of 2012 decided on March 13, 2012, the Tax Board has stayed the assessment order and demand absolutely, there was no reason for the Tax Board to take a different view in the case of the petitioner-company. Counsel for the petitioner is right in emphasising the imperative need of similar orders, even if interim, in similar cases. The honourable Supreme Court in the case of Bharat Sanchar Nigam Ltd. [2006] 3 VST 95 (SC); [2006] 145 STC 91 (SC), has applied the dominant nature test in respect of composite transactions where both an element of sale and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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