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TMI Blog2020 (6) TMI 546X X X X Extracts X X X X X X X X Extracts X X X X ..... an exporter, exporting and importing from the Tuticorin Port. Clause 4.3.4 of the Foreign Trade Policy containing the DEPB Scheme makes it clear that the passbook is issued only in regard to a specified Port, which in this case is Tuticorin. This then is the only nexus which the State of Tamil Nadu has to the transaction in question and in my considered view, is insufficient to bring the transaction to tax in Tamil Nadu. In the present case, we are concerned with a tangible asset, insofar as the right in connection with the export has been reduced to a passbook, constituting specified goods - The categories of specific/ascertained goods and unascertained/future goods are separate and distinct from tangible and intangible goods. The assets may be tangible or intangible on the one hand, also simultaneously being specific/unascertained on the other. Petition allowed. - W.P. No.8999 of 2012 And M.P.No.1 of 2012 - - - Dated:- 1-11-2019 - Dr. Justice Anita Sumanth For the Petitioner : Mr.N.Prasad For the Respondent : Mr.V.Haribabu, AGP ORDER The petitioner is a dealer and an exporter of prawn and fish based at Chennai, admittedly, effecting exports from the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... only. The petitioner objected to the proposal vide reply dated 23.01.2012 reiterating that the application for the Passbook had been made at Bombay, the Passbook had been issued in Bombay, retained in Bombay and thereafter sold in Bombay to a purchaser based in Bombay, duly offered to tax, and rightly brought to tax at Maharashtra. Notwithstanding the objections raised, the impugned assessment has been completed bringing to tax the turnover in the State of Tamil Nadu, which is assailed in the present Writ Petition. 4. Heard Mr.N.Prasad, learned counsel for the petitioner and Mr.V.Haribabu, learned Additional Government Pleader for the respondent. 5. In order to determine the relevant State for fixing taxability, Section 2(33) of the Act read with Explanation (V) thereunder becomes relevant and is extracted below: (33) sale with all its grammatical variations and cognate expressions means every transfer of the property in goods (other than by way of a mortgage, hypothecation, charge or pledge) by one person to another in the course of business for cash, deferred payment or other valuable consideration and includes ,- (i) a transfer, otherwise than in pursuance of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a REP licence, the former would be classifiable as intangible goods as well. Thus, according to him, the asset in question will fall under clause (ii) and since the registered office of the petitioner is in Tamil Nadu, the transaction will be taxable in the State of Tamil Nadu. 7. For this purpose, he relies on a decision of the Division Bench of the Kerala High Court in the case of Lal Products V. Intelligence Officer (W.P.(C) No.13408 of 2009 U dated 06.12.2018, specifically the observations of the Bench at paragraph 20, extracted below:. '20. The consideration of situs of sale insofar as the parties to the transaction herein, the seller and the purchaser, whose principal place of business exist in two connected cases different States offers no difficulty insofar as the specific provisions under the CST Act. We are also of the opinion that the amendment to the definition of sale in the CST Act though relevant for the six instances where there is a deemed sale of goods, has no effect insofar as the subject transaction. Dehors the amendment, the sale would come within the concept of sale as available under the CST Act, in which instance we have to look at Section 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tum 64 of the report) states that both DEPB and Replenishment licences (REP licence) are identical in nature and that both licences are exigible to sales tax. There is no dispute on this position. 11. The sole argument of the Revenue is that the petitioner is an exporter, exporting and importing from the Tuticorin Port. Clause 4.3.4 of the Foreign Trade Policy containing the DEPB Scheme makes it clear that the passbook is issued only in regard to a specified Port, which in this case is Tuticorin. This then is the only nexus which the State of Tamil Nadu has to the transaction in question and in my considered view, is insufficient to bring the transaction to tax in Tamil Nadu. 12. The Division Bench in the case of Lal Products (supra) was dealing with the sale of patent rights and the determination of situs of that transaction. The Bench notes as a finding of fact that the products in which the patent rights vested had been sold all over India. Reference is then made to a decision of the High Court of Delhi in the case of CUB PTY Limited V. UOI and Ors. ((2016) 388 ITR 617) on the question of location of intangible intellectual property rights. Extracting paragraph nos. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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