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TMI Blog2016 (1) TMI 888X X X X Extracts X X X X X X X X Extracts X X X X ..... PRADESH HIGH COURT] - The contract needs a detailed examination vis a vis the decisions of the courts interpreting this constitutional provision. Considering that the appellants have paid VAT on the transaction it will be in the interest of justice to allow stay of the recovery subject to deposite of Rs Three Lakhs only within eight weeks of this order. - stay granted partly. X X X X Extracts X X X X X X X X Extracts X X X X ..... licensing agreement and decisions of Hon'ble Supreme Court in the case of Bharat Sanchar Nigam Lt. Vs. Union of India - 2006 (2) STR 161 (SC). The adjudicating authority observed that in case of Rashtriya Ispat Nigam Ltd. vs Commercial Tax Officer (1990 77 STC 182 AP) has held as follows '5. An owner of property has a bundle of rights in it, namely, right to possess, right to use and enjoy, right to usufruct, right to consume, to destroy, to alienate or transfer, etc. In law it is not only possible but also permissible that the various rights and interest may be vested in various persons. While remaining the owner of a property, a person may create a charge on the property, mortgage it or lease it. In the transaction of sale, all ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r section 5-E is the transfer of the right to use any goods. What does this phrase connote ? This means that unless there is a transfer of the right to use the goods, no occasion for levying tax arises; providing a facility which involves the use of goods nor even a right to use the goods is not enough, there must be a transfer of that right. "The transfer of a right is an event which has a double aspect. It is the acquisition of a right by the transferee, and loss of it by the transferor. The vestitive fact, if considered with reference to the transferee is a derivative title, while from the point of view of the transferor it is an alienative fact." (Salmond on Jurisprudence - Twelfth Edition at pages 332 and 333.) 8. In Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rol of the hirer (transferee) on the cab whereas in the latter case it is lacking. We may have many examples to indicate this difference. 10. Whether there is a transfer of the right to use or not is a question of fact which has to be determined in each case having regard to the terms of the contract under which there is said to be a transfer of the right to use. The Commissioner (Appeals) has examined the contract in detail with reference to aforesaid decisions and reached a conclusion that the said agreement does result in provision of service. 3 Learned counsel for the appellant argued that it has been held in the case of Bharat Sanchar Nigam Ltd. & Anr vs Union Of India & Ors that to constitute a transaction for "transfer of r ..... X X X X Extracts X X X X X X X X Extracts X X X X
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