TMI Blog2014 (9) TMI 248X X X X Extracts X X X X X X X X Extracts X X X X ..... t the first two agreements between the lessor on one hand and Rajinder Steels and others and the revisionist-lessor on the one hand and M/s. Sakura Seimitsu India Ltd. At Delhi on the other hand had been executed at Bombay and Delhi respectively and in both the cases the Schedule in no unmistakable terms demonstrated that the goods existed at Kanpur and NOIDA respectively and therefore the situs of sale would be outside the State of U.P. and no Trade Tax could have been levied on the goods merely because the goods were in the State of U.P. Even otherwise so far as the existence of the goods within the State of U.P. at Kanpur or at NOIDA is concerned it may be stated that the Tribunal has not recorded any finding of fact although it has noti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er was carried in appeal before the the appellate authority and finally to the Trade Tax Tribunal and the Tribunal taking into consideration the decision of the Supreme Court in (2000) 6 SCC 12, 20th Century Finance Corporation Ltd and Another Vs. State of Maharashtra remanded the matter back to the authority for fresh adjudication. On fresh assessment, the assessing authority by his order dated 26.04.2006 has rejected the claim of non-taxability of the revisionist holding that at the time when the contract was entered into by the revisionist, the goods were not in a possession of the lessor and therefore, the situs of sales would be the place where the goods were actually transferred to the customer i.e. within the State of U.P. Aggriev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ying on his own judgment. The second agreement executed between the revisionist and Rajinder Steels Ltd has been filed as Annexure-2 to the supplementary affidavit and the schedule thereto also goes to show that the location of the equipment was Rajinder Steels Ltd, 23rd KM. Stone, Kalpi Road, Kanpur and that the manufacture/supplier was R.M. Machine (p) Ltd. Taneja Bhawan 78/284, Latouche Road, Kanpur. In this agreement also para 6.3 mentions that the lessee has inspected and selected the equipment and that the lessee has signed the agreement relying entirely on the lessee's own judgment. Thus, the submission of the learned counsel is two fold, namely:- 1. Both the agreements were executed by the revisionist outside the State of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the situs of deemed sale for levy of tax if the transfer of right to use has taken place in another State. Therefore, if the contention on behalf of the respondents that there would be no completed transfer of right to use goods till the goods are delivered is to prevail, then the respondents are further required to show that the contract of transfer of right to use goods is also entered into in the said State in which the goods are located or delivered for use. The State cannot levy a tax on the basis that one of the events in the chain of events has taken place within the State. The delivery of goods may be one of the elements of transfer of right to use, but the same would not be the condition precedent for a contract of transfer of ri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the right to the use of goods and situs of sale would be the place where the contract is executed and not where the goods are located for use. Paragraph 35 (c) reads as follows: As a result of the aforesaid discussion our conclusions are these: (a) ............................ (c) Where the goods are available for the transfer of right to use the taxable event on the transfer of right to use any goods is on the transfer which results in right to use and the situs of sale would be the place where the contract is executed and not where the goods are located for use. ....................... From an examination of the judgment of the Tribunal, it is noticed that the Tribunal has not recorded any findings of fact with regard to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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