TMI Blog2018 (8) TMI 2X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 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 go ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... specific contract levying hire charges for such furniture, which charges are to be paid for a period of seven years, on expiry of which or on retirement or transfer prior to that period; the employee is given an option to exercise his right to purchase the same. The AO has levied tax on the hire charges collected, alleging it to be charges on the transfer of right to use. The further sale component at the time of exercise of option by the employees has also been taxed. The first appellate authority and the Tribunal refused to interfere with the same. The contention of the assessee is that, in fact, it is a loan to the employees for the purpose of purchase of furniture. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en produced before the Tribunal also. We see that the SRO Forms produced as Annexures-D1 to D3 are dated 19.1.2002, 9.1.2002 and 19.3.2004 respectively, and Annexure-D4 nil date, and Annexures-D5 to D9 are dated 28.2.2004, 20.12.2001, 20.12.2001, 26.3.2002 and 3.1.2002, respectively. Annexures-D10, D11 and D12 only listed transactions without any supporting SRO forms. All these have been issued long before the assessment was completed as per Annexure-A order dated 24.12.2009. 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. We are hence not inclined to direct any fresh consideration of these forms. We also notice that the AO had specifically rejected the afore ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... only of the assessee failing to establish the movement of goods outside the State. 9. On the aspect of water cess, the Tribunal relies on State of Kerala v. Cochin Shipyard Ltd. [(2009) 17 KTR 621 (Ker.)], which, according to the learned Counsel for the petitioner, is not at all applicable to the present case. Therein, the issue was whether the water charges paid by the assessee for its consumption in the industrial unit could be levied with purchase tax. The Division Bench of this Court found that such water charges are exigible to purchase tax under Section 5A. In the present case, the purchase tax under Section 5A has been satisfied by the assessee. What is to be looked at is whether the water cess paid by the assessee under the Water (Prevention and Control of Pollution) Cess Act, 1977 [for brevity Water Cess Act of 1977 ] can be included in the turnover for the purpose of levying purchase tax. We agree with the learned Counsel for the petitioner that Cochin Shipyard Ltd. does not apply to this case on facts and law laid down. 10. The learned Senior Government Pleader relies on the decision in Madras Rubber Factory Ltd. v. State of Kerala [1989 (1) KLT 827 (FB)], ..... X X X X Extracts X X X X X X X X Extracts X X X X
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