TMI Blog2009 (6) TMI 935X X X X Extracts X X X X X X X X Extracts X X X X ..... ever delivered or handed over to the ONGC. It may be that as per the requirement of ONGC, fixed time was assigned to them and during that fixed time of the day, staff members of ONGC would come to the office of the respondents to get their work done but during all that period, computers would be operated by the employees of the respondents and not by the employees of the ONGC. In view of the language of sections 3 and 4 tax shall be leviable on the turnover of sales in respect of transfer of right to use any goods. Unless there is transfer of right to use any goods, the provisions of the said Act will not be attracted and sales tax cannot be levied on such transactions. Taking into consideration the nature of the contract between the respondents and the ONGC and the legal position, it must be held that the Tribunal correctly interpreted the provisions of section 2(10) of the Act while holding that the transaction is not taxable. Decided in favour of the respondents and against the Revenue. - - - - - Dated:- 19-6-2009 - REBELLO F.I. AND BHATIA J.H., JJ. The judgment of the court was delivered by J.H. BHATIA J. The Commissioner of Sales Tax filed the application seeki ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unal allowed the appeal and set aside the order passed by the Additional Commissioner of Sales Tax. Hence, this reference at the instance of the Commissioner of Sales Tax. Provision is made for the purpose of levy of tax under sections 3 and 4 of the Act. Sections 3 and 4 read as follows: 3. Incidence of tax. Subject to the provisions contained in this Act and the Rules made thereunder a tax shall be leviable on the turnover of sales in respect of, (i) the transfer of the right to use any goods agreed to before the appointed day but the right to use is exercised on or after the appointed day; (ii) the transfer of right to use any goods agreed to prior to the appointed day, and wherein the right to use has been continued after the appointed day, to the extent of the sale price received or receivable in respect of such use on or after the appointed day; and (iii) the transfer of right to use any goods agreed to on or after the appointed day. 4.. Levy of tax. There shall be levied a tax on the turnover of sales in respect of the transfer of the right to use goods specified in the Schedule, at such rate not exceeding fifteen paise in the rupee, as the State Governme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tution Bench of this court in 20th Century Finance Corpn. Ltd. v. State of Maharashtra [2000] 119 STC 182 (SC); [2000] 6 SCC 12. Once DoT connects the telephone line of the assigned number of the subscriber to the area exchange, access to other telephones is established. There cannot be denial of the fact that giving such an access would complete the transfer of the right to use the goods.' . . . 75.. In our opinion, the essence of the right under article 366(29A)(d) is that it relates to user of goods. It may be that the actual delivery of the goods is not necessary for effecting the transfer of the right to use the goods but the goods must be available at the time of transfer, must be deliverable and delivered at some stage. It is assumed, at the time of execution of any agreement to transfer the right to use, that the goods are available and deliverable. If the goods, or what is claimed to be goods by the respondents, are not deliverable at all by the service providers to the subscribers, the question of the right to use those goods, would not arise. (emphasis Here italicised. supplied) 76.. In State of Andhra Pradesh v. Rashtriya Ispat Nigam Ltd. [2002] 126 STC 114 (S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... age, this requirement would be missing and it would be difficult to say that transfer of right to use the goods was effected. List of goods is given in the Schedule to which this Act is applicable. As per the Schedule, transfer of the right to use video cassette, television sets, video cassette recorders, video cassette players or projectors, vehicles like trucks, tractors, buses, jeeps, cars, three wheelers, etc., are covered. A videographer or the photographer may be engaged to cover certain function. Naturally the videographer or photographer would take his instruments like camera with him to cover the programme and prepare photographs or the video films. Normally the instruments are operated by himself or his assistants. The instruments are never delivered to the customer during the period the programme is being covered. The said photographer or videographer may, during that period, use instruments only for that particular programme but the right to use the said instruments is not given to the customer whose programme is being covered. Similarly, a truck may be engaged for transportation of goods by some person by paying fare or freight to the truck owner. Said truck owner w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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