TMI Blog2019 (2) TMI 429X X X X Extracts X X X X X X X X Extracts X X X X ..... pose served by a direction in this appeal - appeal dismissed. - OT. Appeal. No. 11 of 2010 - - - Dated:- 28-1-2019 - MR K. VINOD CHANDRAN AND MR MR ASHOK MENON, JJ. For The Appellant : ADVS. SRI. E. K. NANDAKUMAR (SR. ) SRI. P. GOPINATH (SR. ) BENNY P THOMAS JAYASANKAR A. K SRI. K. JOHN MATHAI AND RAJAKANNAN For The Respondent : SRI V. K SHAMSUDHEEN, SR. GP JUDGMENT Vinod Chandran, J . The appeal is from an order of clarification under Section 94 of the Kerala Value Added Tax Act, 2003. The order is appended at Annexure D. The issue raised by the appellant is as to whether the Build Operate Maintain and Transfer (BOMT) contract entered into by the appellant with the Motor Vehicles Department of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ds installed or incorporated as infrastructure. The entire operation and maintenance is the sole responsibility of the assessee. For the purpose of software installation, there was a back to back agreement with another, M/s Tera Software Ltd., Hyderabad. The specific contention of the appellant is that it retains the ownership in the goods till it is transferred to the MVD after three years, the period of the contract for operation and maintenance. The MVD officials in operating the system are merely using it and hence there is only a transfer of right to use involved in the transactions. Specific reference is made to clause (9) of the agreement produced as Annexure B to advance their contention. 4. The learned Senior Government Pleader, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e operational, which occurs as described in the agreement, when it goes-live and the works contract is completed therein for which deferred payments are made every quarter for the three year period when the assessee has the further obligation to operate and maintain the system. The entire system is placed at the disposal of the MVD and there can be discerned no transfer of right to use, since the property in goods gets transferred on the system becoming live. The further obligation on the appellant is only to maintain and operate the system for three years to make it fully functional and free of any technical glitches that may arise in its operation. The obligation to operate and maintain the goods does not confer any title of the goods o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ficials in the three year period after go-live , when the assessee had only the obligation to operate and maintain the system. The learned Government Pleader specifically points out that the clarification order is only with respect to taxing the transfer of value of goods involved in the contract. The Assessing Officer definitely would look into such contentions and make appropriate deductions as available for a works contract, when taxing the same; if not already done. If the assessment is completed, it is for the assessee to challenge such orders, if deductions in accordance with law, have not been granted. In such circumstances, there is no purpose served by a direction in this appeal. We, hence, do no find any reason to interfere wi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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