TMI Blog2018 (12) TMI 612X X X X Extracts X X X X X X X X Extracts X X X X ..... . Revision dismissed. - Sales/Trade Tax Revision No. - 342 of 2018, 343 of 2018 - - - Dated:- 10-12-2018 - Saumitra Dayal Singh, J. For the Applicant : Bipin Kumar Pandey For the Opposite Party : Nikhil Agrawal ORDER SAUMITRA DAYAL SINGH,J. 1. Heard Sri Nikhil Agrawal, learned counsel for the assessee-respondent in both the revisions and Sri Bipin Kumar Pandey, learned Standing Counsel. 2. The present revisions have been filed by the revenue raising the following question of law: Whether on the facts and in the circumstances of the case, Commercial Tax Tribunal was legally justified in holding that transfer of right to use of non-exclusive trade mark license was not taxable in view of the division ben ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f rights to use the goods, the transaction must fulfill the following five conditions:- (a) there must be goods available for delivery; (b) there must be a consensus ad idem as to the identity of the goods; (c) the transferee should have a legal right to use the goodsconsequently all legal consequences of such use including any permission or licences required thereof should be available to the transferee; (d) for the period during which the transferee has such legal right, it has to be the exclusion to the transferor-this is the necessary concomitant of the plain language of the statute viz. a transfer of right to use and not merely a licence to use the goods; and (e) having transferred the right to use the goods ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of prayer for leave itself, the Supreme Court dismissed the special leave petitions by the following order dated 24.09.2015: The special leave petitions are dismissed on the ground of delay. However, the question of law raised is kept open to be agitated in an appropriate case. 5. In this view, learned Standing Counsel would submit that the earlier order passed by this Court had not merged in the orders of the Supreme Court, therefore, in light of the further decision of the division bench of this Court in the case of M/s G.D. Goenka (P) Ltd. vs. State of U.P. and others, passed in Writ Tax Nos. 146 of 2013 and 636 of 2015, decided on 09.12.2016, the earlier decision of the learned single judge of this Court (in inter part ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt dated 13.02.2017 reads as under: Heard the learned counsel for the petitioner and perused the relevant material. Exemption from filing O.T. is granted. Issue notice in the Special Leave Petitions as also on the prayer for interim relief. In the meantime, there shall be stay of the order of the High Court of Allahabad dated 9th December, 2016 in Writ Tax Nos. 146 of 2013 and 636 of 2015. 10. Having considered the arguments so advanced by the learned counsel for the parties, it is seen that in the first place, the controversy stands decided by a decision reached between the parties in the earlier assessment year. The essential reasoning in that case being that, though there was a transfer of right to use a trade ..... X X X X Extracts X X X X X X X X Extracts X X X X
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