TMI Blog2019 (11) TMI 535X X X X Extracts X X X X X X X X Extracts X X X X ..... her materials as may have also been relevant to determine the true nature of the contract entered into between the assessee and its subscribers which gave rise to the disputed receipts at the hands of the assessee. If upon examination of such material the Tribunal had reached the conclusion that there was a transfer of right to use, then in that situation a further question would have arisen as to apportionment and determination of the amount received by the assessee as may be attributed towards consideration for transfer of right to use as only that amount may have been subjected to tax. Admittedly, the activity performed by the assessee also involved providing service. Therefore, unless such bifurcation or apportionment is found to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... filed by the revisionist-Bharat Sanchar Nigam Ltd. to assail the orders passed by the Commercial Tax Tribunal by which the Tribunal has dismissed the appeals filed by the present revisionist-assessee and confirmed the demand of tax on transfer of right to use of telephone instruments provided by the assessee to its subscribers/customers and also for the A.Y. 2004-05 on sale of SIM cards for mobile network service. 2. Since the facts are identical in all the cases and since the order of the Tribunal is also identical in all the revisions, these revisions are being decided by this common order. 3. For the sake of convenience, the facts obtained in Sales/Trade Tax Revision Nos.421 of 2009 for the A.Y. 2004-05 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of 2003) dated 02.03.2006 duly followed by a division Bench of this Hon'ble Court in case of Union of India and another Vs. State of U.P. and another (Civil Misc. W.P. No. 673 of 1997) vide judgment dated 22.3.2006? (iv) Whether, the authorities below have misinterpreted the law laid down by the Hon'ble Supreme Court vide decision dated 02.03.2006 regarding liability of tax on rentals? (v) Whether, there is no transfer of right to use goods while proving landline telecommunication services to the subscribers and the Division Bench decision of this Hon'ble Court in the case of Oriental Bank of Commerce Vs. State of U.P. and others reported in 2008 (3) A.D.J. 1 (D.B.) has a binding effect? ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the amount received by the assessee were chargeable to tax being consideration for transfer of right to use. 9. The aforesaid approach adopted by the Tribunal and the reasoning offered by it, is unacceptable. In the first place, such reasoning and approach does not deal with the specific grounds of challenge raised by the assessee before the Tribunal as have also been referred to above. Once the assessee had raised specific challenge as to absence of any transfer of right to use, it was for the Tribunal to have applied its mind and offered reasoning to meet such challenge. Second, had such exercise been gone into, it would have become necessary for the Tribunal to call for and examine evidence including the agreements e ..... X X X X Extracts X X X X X X X X Extracts X X X X
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