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2017 (5) TMI 769 - HC - VAT and Sales TaxDeemed Sale - Transfer of right to use - buses given on hire - MVAT Act - dealer within the meaning of Section 2(8) of the MVAT Act - transaction between Appellant and PMPTL amounts to sale or not? - whether amounts to sale or provision of service? - Held that: - it is the PMT alone which can use the hired buses. They cannot be put to use by the appellant privately nor he can divert the user in contravention of the directions of the PMT. The exclusive possession is with the PMT. All the licences, permissions and the benefit thereof is transferred to the PMT. Nothing insofar as the hired bus is concerned remains within the control of the appellant. Thus, the PMT has effective and complete control of the vehicles and the earmarked buses are in exclusive possession of the PMT. The appellant stands totally excluded from the use, possession and control thereof. The hired buses in complying with the specifications enumerated in Annexures A and B for a period of five years will ply on PMT permit granted by the Regional Transport Office, Pune. The hired buses will be registered with the RTO, Pune in the name of the PMT as lessees and will be operated as stage carriages within the operational area of the PMT. This is not a case of a sale of transport vehicle or purchase thereof nor a case of sale of parts, components or accessories of such transport vehicles or purchase thereof. This is a case where the legislature has made the transfer of the right to use any goods for any purpose a deemed sale. The question is whether there is a transfer of right to use any goods and within the meaning of subclause (iv) of the Explanation to clause (24) of section 2 of the MVAT Act. It is in these circumstances that we do not think that given the factual backdrop the appellant can take assistance of the third exception to clause (8) of section 2 of the MVAT Act, 2002. When the burden of the tax has to be borne actually by the PMT and the appellant can pass on the same by including it in the sale price, then, all the more we do not think that any relief should be granted based on this alternate plea. We have also noticed that the appellant has obtained a registration under the MVAT Act and so long as that registration is in force, he cannot escape the incidence of tax qua the subject transaction. It is not just a dealer, but every person who is liable to pay tax under this Act, shall pay the same. That is how taxes are payable within the meaning of section 4. The tax or taxes thus are leviable on every person who is liable to pay tax under the MVAT Act. It is only those transactions which are covered by section 8 of the Act on which the MVAT is not payable. Appeal dismissed - decided against appellant-assessee.
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