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2018 (8) TMI 2 - HC - VAT and Sales TaxImposition of tax - income on account of hire charges received by the Company for furniture supplied to the residences of the employees - contention of the assessee is that, in fact, it is a loan to the employees for the purpose of purchase of furniture - Whether the Tribunal was right in affirming the tax imposed on the income on account of hire charges received by the Company for furniture supplied to the residences of the employees? - Held that:- If it were a loan it should have been disbursed so, but the specific contract reveals that the assessee retained the ownership of the furniture and also received hire charges for the same. The three purchase vouchers in the name of the assessee, produced by the assessee itself, goes against its contention that it was a mere loan. The assessee had been supplying furniture to its employees and also had been taking hire charges for the same which definitely comes within the ambit of a transfer of right to use and we do not find any reason to interfere with the order of the AO as approved by the Tribunal - levy of tax upheld. Whether levy of tax on transfer of furniture to employees is liable to be taxed being a second sale? - Held that:- The assessee had produced before the Tribunal three invoices which indicated purchases from a manufacturer of furniture. The Tribunal only to that extent granted relief, insofar as the second sale was absolved from liability to tax. The assessee did not produce any evidence to indicate that the other furniture supplied to its employees and later purchased by them, had suffered tax at the earlier point - demand upheld. Equipment charges received by the assessee from its contractors - Whether the Tribunal was correct in having sustained levy of tax on equipment charges being charges on hire received from contractors for permission to use heavy equipments, like cranes, for the purpose of execution of the contract? - Held that:- Only certificate of registrations have been produced as Annexures-D16 to D-19, which do not indicate that the assessee had used its own employees in operation of the said vehicles registered with the Motor Vehicles Department. Further, it is seen from the submission of the assessee before the appellate authority as extracted in the memorandum that there is a specific contract between the assessee and the contractors and the conditions of contract facilitates such hiring for speedy completion of the job. In that case, the terms of the contract would have indicated as to under whose control the cranes were, even when it was hired. The assessee failed to produce such a contract before any of the fact finding authorities - demand upheld. Form-18 and SRO forms - Ought not the Tribunal verified Form-18 declarations and SRO forms produced before it and allowed the exemption claimed to the extent of the turnover reflected in such forms? - Held that:- There is no explanation as to why these Forms were not produced before the AO. We also do not see any production of these documents before the Tribunal as is seen from the extract of the appeal memorandum, either as extracted by the Tribunal or by the assessee in the memorandum of revision. The claim with respect to Form-18 also does not hold any credence, insofar as the perusal of the same as produced at Annexures-D13, D14 and D15. Annexures-D13 does not have a date and Annexure- D14 is not filled up in the blank portions and Annexure-D15 again is one issued on 13.11.2001 - the prayer for reconsideration by the Tribunal is rejected. Whether the Assessing Officer (AO) was right in having imposed tax at the rate of 30% for bitumen and Special Boiling Point Spirit (SBPS) for which tax is only 24%? Has not the Tribunal erred in not having considered the specific submission made before it? - Held that:- The Tribunal has extracted the said grounds but has not answered it - The correct rate of bitumen and SDPS will be verified by the AO and the modifications, if any, required would be made - matter on remand. Whether the Tribunal was correct in having sustained levy of interest as made in the assessment order? - Held that:- There can be no doubt that it is from the date of return and if the assessee has any complaint regarding the computation, they have to necessarily approach the AO - there is no substantial question of law raised in S.T.Rev.No.86 of 2012; but, however, leaving the assessee to agitate before the AO, on the correct rate to be applied on bitumen and SDPS as also the computation of interest. Whether the inclusion of water cess in the turnover for the purpose of levying purchase tax under Section 5A on the water supplied by the Irrigation Department to the revision petitioner is justified? - Held that:- The cess payable under the circumstances of a local authority supplying water to a person carrying on a specified industry is by the industry who consumes and uses such water supplied. The Explanation to Section 3 also brings in consumption of water within the ambit of the description “supply of water”. Hence, the cess is on the supply of water, which has to be levied at the time of supply and the charge is on the person who uses such water. In the present case, it is the Irrigation Department which supplies water for a price and, hence, the turnover also includes water cess. The water cess is a component that can be legitimately included in the aggregation of the consideration for the transfer of the goods - decided against assessee. Whether the stock transfer supported by F-Forms were rightly rejected for reason only of the assessee failing to establish the movement of goods outside the State? - Held that:- When F-Forms are supplied and the consignor is asked to prove the transport of goods, it is the duty of the assessee to establish such transport, since F-Form is only one mode of evidence to establish the inter-State transfer of goods on consignment - decided against assessee. Revisions dismissed - part matter on remand.
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