TMI Blog2019 (9) TMI 105X X X X Extracts X X X X X X X X Extracts X X X X ..... to be considered by the Tribunal in terms of the other clauses in the agreement i.e. whether the turbo alternators leased out by the assessee could be severed by the lessee. If such a clause is absent in the agreement, the assessee cannot be subjected to tax as in that case, there would be no movable goods but only immovable property that had been leased out. - Matter restored before tribunal. Levy of tax - sale of boilers in running condition and embedded to earth - HELD THAT:- The Tribunal has proceeded on the reasoning that since the equipment was sold not with the land or earth to which it was attached, therefore, only movable goods had been sold - it would have to be seen whether, under the sale deed, the purchaser had right to re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ri B.K. Pandey, learned Standing Counsel for the opposite party-revenue. 2. Present revision has been filed by the assessee against the order of the Trade Tax Tribunal, Allahabad dated 19.11.2005 in Second Appeal No. 291 of 1999 for A.Y. 1994-95. By that order, the Tribunal has dismissed the appeal filed by the assesee and thus confirmed the first appeal order. 3. Present revision has been admitted on the following questions of law:- (i) Whether, on the facts and in the circumstances of the case, the levy of tax on lease rent amounting to ₹ 55,91,076/- was justified? (ii) Whether, on the facts and in the circumstances of the case, the levy of tax on sale of Baggas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he assessee had itself disclosed sale of Lugdi against Form III-B and realized tax on such sale. Therefore, in his submission, no grievance can be raised by the assessee at this stage. 6. Having considered the arguments advanced by learned counsel for the parties and having perused the record, no interference is warranted in the present revision, inasmuch as from a plain reading of the order passed by the first appeal authority, first, it does appear that the conclusion had been drawn against the assessee upon perusal of the record itself. In any case, once the first appeal authority reached a conclusion that the assessee had disclosed sale of Lugdi against Form III-B and had recovered tax on such sale, it was f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Supreme Court in the case of the assessee under the Central Excise Act being Triveni Engineering Indus. Ltd. Vs. Commissioner of Central Excise 2000 (120) E.L.T. 273 (S.C.) . 9. Opposing the same, learned Standing Counsel would submit that the judgement of the Supreme Court would not be applicable to the facts of the present case, as the controversy arising under the Act is to be decided keeping in mind the statutory definition of the word 'goods' given under Section 2(d) of the U.P. Trade Tax Act, 1948 (hereinafter referred to as the 'Act'). 10. Having heard learned counsel for the parties and having perused the record, in the first place, the reasoning given by the Tribunal that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... being found present, it would remain open for the assessee to raise other objections as it may be advised, to establish that the turbo alternators would not be taxable. For that matter, the instant issue is being remitted to the Tribunal to pass a fresh order in accordance with law without allowing any party to lead any fresh evidence. 13. Insofar as question no. (iii) is concerned, tax had been imposed on the assessee on sale of boiler equipment by it to M/S Cipla Ltd. (wrongly described as Kotak Mahindra Ltd. in the Tribunal order). It is an admitted case between the parties that the boiler equipment had been installed and thus fixed to the ground inside the factory premises of the assessee. In that condition and state, i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... v) is concerned, learned counsel for the assessee would submit that during A.Y. 1994-95, Section 3AAAA of the Act was applicable only with respect to commodities taxable at the point of sale to consumer. That position was changed by amendment made to the Act by U.P. Act No.11 of 1997. However, by virtue of Section 1(ii) of the Amending Act read with the Notification No.3110 dated 30.09.1997, the said provision became effective from 01.10.1997 and not retrospectively. 17. Therefore, it has been submitted that insofar as the commodities bricks and 'gitti' is concerned, during the assessment year in question, those commodities were taxable at the point of sale by the manufacturer or the importer and not at the point of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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