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2013 (12) TMI 743 - HC - VAT and Sales TaxLiability to sales tax - Transfer of right - Petitioner contends that it only gave franchisee right and there was no sale hence no sales tax is leviable - Revenue contends that transfer of trade mark and a trade mark is a property right, intangible or incorporeal goods and would fall within the definition of 'goods' hence liable to tax - Whether receipts pursuant franchisee agreement are liable to sales-tax - Held that:- petitioner has transferred their right to use their trade mark, good will, reputation exclusively to the franchisee in respect of a particular outlet and any misuse of such exclusively licensed right rendered, the franchisee open to action which meant to include the termination of agreement in terms of XIV of the said agreement. Therefore, it is a case where goods which are in the nature of intangible or incorporeal goods were available for delivery there were consensus adidem to the identity of such goods as the transferee has a legal right to use the goods and during the period when the agreement was in force, namely for a period of 10 years it was an exclusive right given to the transferee by the petitioner in respect of a particular store and consequently a transfer of right to use and not merely a licence to use the goods and during the period when the agreement was in force, the petitioner as the transferor could not transfer such goods with particular reference to the exclusive right given in respect of a particular store to any other party. Thus, all the attributes to constitute transfer of right to use the goods have been fulfilled - Right given by the petitioner is undoubtedly a transfer of right to use incorporeal or intangible goods and therefore, exigible to sales-tax - Following decision of BSNL vs. Union of India [2006 (3) TMI 1 - Supreme court] and Sunrise Associates vs. Government of NCT of Delhi & Ors. [2006 (4) TMI 118 - SUPREME COURT of INDIA] - Decided in favour of assessee.
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