9911796707
TMI Blog2024 (6) TMI 956X X X X Extracts X X X X X X X X Extracts X X X X ..... ived as penalty for default in payment or as damages for any loss or damages caused to the goods by the person to whom such transfer was made, and as per the Explanation, the gross turnover meant the total amount received or receivable by a dealer in an assessment year as valueable consideration for the transfer of the right to use the goods whether such transfer was agreed to during that assessment year or earlier. The Supreme Court in the case of M/S. K.P. MOZIKA VERSUS OIL AND NATURAL GAS CORPORATION LTD. ORS. [ 2024 (1) TMI 443 - SUPREME COURT] , while examining the case of Assam General Sales tax Act, 1993 and the Assam Value Added Tax Act, 2003, in the case of an assessee, who had agreed to provide different categories of motor vehicles, such as trucks, trailors, tankers, buses, scrapping winch chasis, and cranes, to the Oil and Natural Gas Corporation Limited to deliver its petroleum products, also examined the question whether hiring these motor vehicles / cranes, there was transfer of the right to use any goods and if there was a transfer of the right to use the goods, will it amount to a sale in terms of Clause (29A) (d) of Article 366 of the Constitution of India. After ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... khand Transport Corporation. On the basis of the information received from the said Corporation, a show-cause notice was issued to the revisionist by the Assistant Commissioner, Commercial Tax, Dehradun treating the transaction to be a deemed sale covered by transfer of right to use . The revisionist gave her reply, however, the Assistant Commissioner, Commercial Tax, Dehradun passed the Assessment Orders dated 6th December, 2010. As per the terms of the Agreement (Annexure No. 1), the payment received by the revisionist for giving her buses for hiring was treated to be a deemed sale and was covered by transfer of right of use and tax was imposed. 4. On Appeals, the Joint Commissioner (Appeal-II), Commercial Tax, Dehradun, vide common order dated 27th August, 2011, allowed the Appeals. 5. Against the common order dated 27th August, 2011 (Annexure-3 to the revision), the Revenue preferred Second Appeal Nos. 186, 185 and 187 of 2011 (Annexure No. 4 to the revision), which were allowed by the Commercial Tax Tribunal, Dehradun by order dated 13.09.2012 (Annexure No. 5 to the revision) and the assessment orders passed by the Assistant Commissioner, Commercial Tax, Dehradun were upheld. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion which has come to his possession, is satisfied that any person who is liable to pay tax under this Act in respect of any period has failed to get himself registered, he shall, before expiry of three years following the end of the relevant financial year, proceed to assess the person to the best of his judgment as to the amount of tax due from such person in respect of such period and all subsequent periods and shall direct him further to pay, by way of penalty, a sum equal to the amount of tax found due as a result of such assessment : Provided that no such assessment shall be made without giving the dealer a reasonable opportunity of being heard. Explanation :- For the purposes of this section, a dealer shall be deemed to have failed to apply for registration, if he makes an incomplete application for registration or having made an application for registration, fails to comply with any direction given to him by the Assessing Authority within the time specified by it. Rule 15: Determination of turnover relating to the Transfer of Right to use Goods- (1) The tax under clause (a) of sub-section (5) of section 4 on the turnover relating to business of transfer of the right to use ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt or as damages for any loss or damages caused to the goods by the person to whom such transfer was made, and as per the Explanation, the gross turnover meant the total amount received or receivable by a dealer in an assessment year as valueable consideration for the transfer of the right to use the goods whether such transfer was agreed to during that assessment year or earlier. 11. Keeping in view the above provisions of Rule 15, the Tribunal held that the total amount received by the assessee in lieu of the transfer of right to use the bus, was taxable as this amount was more than Rs. 5 Lacs under Section 3 (7). The case of the revisionist was covered under the category of transfer of right to use goods under Section 4 (5) (a), which reads as under:- Section 4 Rate of Tax- (5) Every dealer shall pay a tax on the net turnover, determined in the prescribed manner, in respect of- (a) transfer of the right to use any goods for any purpose (whether or not for a specified period) at the rate of four percent; and 12. The Tribunal further held that the order passed by the Joint Commissioner (Appeals) holding that the amounts so received by the assessee in lieu of transfer of right to u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch reads as under:- 65. Definitions.- (1) (105) Taxable service means any service provided or to be provided- (a) (zzzzj) to any person, by any other person in relation to supply of tangible goods including machinery, equipment and appliances for use, without transferring right of possession and effective control of such machinery, equipment and appliances. It provides that taxable service means any service provided to any person by any other person in relation to the supply of tangible goods, including machinery, equipment and appliances for use without transferring the right of possession and effective control of such machinery, equipment and appliances. 16. Thereafter, in Paragraph-42, the Supreme Court observed as under:- 42. Essentially, the transfer of the right to use will involve not only possession, which may be granted at some stage (after execution of the contract), but also the control of the goods by the user. When the substantial control remains with the contractor and is not handed over to the user, there is no transfer of the right to use the vehicles, cranes, tankers, etc. Whenever there is no such control on the goods vested in the person to whom the supply is mad ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
