TMI Blog2008 (2) TMI 603X X X X Extracts X X X X X X X X Extracts X X X X ..... appeal of the assessee. Thus we do not wish to interfere with the finding of fact recorded by the Tribunal in the present case. - Civil Appeal No. 1660 of 2008, S.L.P. (C) No. 2566 of 2007 - - - Dated:- 28-2-2008 - KAPADIA S.H. AND SUDERSHAN REDDY B. JJ. Krishnan Venugopal, S.K. Dwivedi, Ravinder Kumar and Gunnam Venkateswara Rao, Advocates for the respondent. Dinesh Dwivedi, Senior Advocate (Kavin Gulati, Ms. Rashmi Singh, Avinash Pandey, Pratik Dwivedi and T. Mahipal, Advocates with him) for the appellant. -------------------------------------------------- The judgment of the court was delivered by S.H. KAPADIA J. Leave granted. This civil appeal filed by the assessee is directed against the judgment and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the assessee preferred second appeal under section 10 of the 1948 Act before the Tribunal, Bareilly. Vide order dated January 28, 2004, the Tax Tribunal remanded the cases to the A.O. for fresh disposal. The Tribunal directed the A.O. to consider the cases de novo in the light of the judgment of this court in the case of 20th Century Finance Corpn. Ltd. v. State of Mahar- ashtra [2000] 6 SCC 12 See [2000] 119 STC 182 (SC). On remand, the A.O. held that in the lease agreement dated March 24, 1992 there was a warranty clause which indicated that M/s. Kesar Enterprises Limited had selected the equipments which were leased out to it prior to its purchase by the assessee. The A.O. came to the conclusion that the equipment was purchased pri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Tribunal vide its order dated May 6, 2006. The Tribunal further held that there was no merit in the argument of the assessee that lease agreement was executed pursuant to letter of intent dated October 29, 1991, particularly, when there was no indication to that effect in the lease. According to the Tribunal, had the lease been executed in continuation of the letter of intent, there would have been reference to such letter in the lease and in the absence of such reference it cannot be said that the lease stood executed pursuant to the letter of intent. Consequently, the appeal filed by the assessee before the Tribunal stood dismissed. The tax revisions, filed by the assessee before the High Court, have also been dismissed. Hence thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in this case the place where the right to use is transferred is relevant and not place of delivery which may be relevant in case of oral contracts to determine the situs. In cases under section 3F, the subject-matter of taxation is transfer of right to use and, therefore, place where such right is transferred assumes importance. Hence, we are required to look to the place at which the contract is executed. In case of oral contracts with which we are not concerned the situs of the transfer may be where goods are delivered. According to the assessee, the letter of intent was the contract which existed on October 29, 1991. However, the said letter does not indicate the place, namely, Mumbai. It is important to note that this letter of inten ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the supplier to the locations specified in the lease. Therefore, in that case it was established that the appellants had placed their purchase orders to the suppliers pursuant to the master lease agreement whereas in the present case there is nothing to indicate that there existed an agreement/arrangement pursuant to which the purchase orders were placed on November 28, 1991. Therefore, on the facts of the present case, we hold that the judgment of this court in the case of 20th Century Finance Corpn. Ltd. [2000] 6 SCC 12 See [2000] 119 STC 182 (SC)has no application to the present case. In fact, the record indicates that the letter of intent surfaced after 12 years at the instance of the assessee in order to align this case with the fa ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
