TMI Blog2019 (12) TMI 623X X X X Extracts X X X X X X X X Extracts X X X X ..... ordance with law - Revision allowed. - Trade Tax Revision No. - 33 of 2018 - - - Dated:- 4-12-2019 - Piyush Agrawal, J. For the Revisionist : Mudit Agarwal,Nidhi Agarwal For the Opposite Party : C.S.C. ORDER PIYUSH AGRAWAL, J. The present revision has been filed against the order dated 12.01.2018 passed by the Commercial Tax Tribunal, Bench - 3, Lucknow in Second Appeal No. 528 of 2013 for the assessment year 2007-08 (for the period from 01.04.2007 to 31.12.2007), by which the appeal of the revisionist has been dismissed. Heard Shri Jaideep Mathur, learned Senior Counsel, assisted by Shri Mudit Agarwal, learned counsel for the revisionist and Shri Sanjay Sharim, learned standing counsel for the Revenue. This Court, on 16.04.2018, had admitted the aforesaid revision on the following question of law:- 1. Whether the tax imposed by rejecting the Form III-D's on technical grounds can be treated to be the tax admittedly payable by a dealer as defined in the Expla(nation appended to Sub-section 1) of Section 8 of the U.P. Trade Tax Act, for th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plication under Section 12-B of the Act submitted by the revisionist ? It has been averred in the revision that the revisionist is a registered Company and is engaged in the business of manufacture trade of automobiles, vehicle, chassis, reconditioning of engines parts and accessories thereof. It is averred that the revisionist is engaged in four different business units having different registrations for the purposes of Central Excise, but for the purposes of U.P. VAT Act, they share a common registration and have a common taxpayer identification number (TIN). It is further averred that the revisionist has also a sister concern in the name and style of M/s Tata Marco Polo Motors Limited (in short, TMML), which is a joint venture Company engaged in building of bodies of low floor buses and bus bodies and mounting. The revisionist entered into an agreement on 18.12.2007 with TMML, by which certain machineries were given for use in the factory premises. The Revenue has imposed tax under section 3-F of U.P. Trade Tax Act treating the same as transfer of right to use the goods for valuable consideration. It is further averred tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and equipment provided by TML as per the installation plan to be prepared by TMML. It is specifically agreed between the parties that TMML shall solely be responsible for ensuring compliance with all applicable safely related norms in respect of the use of the machinery and equipment and TML shall not have any liability whatsoever in this regard. 6. Operation of machinery and equipment:- TMML shall: (a) at all times keep and maintain at time own costs and machinery / equipment in good operational condition and working order as a ballee and repair the same when ever necessary and shall dutifully follow the machinery / equipments manufacture s recommendation as to user, service and maintenance of the same. (b) use the machinery/ equipment exclusively in connection with the execution of work relating to manufacture of bus/bus bodies for TML and shall not use for any third party or for any purpose other than that mentioned in this agreement. 7. Rent:- TML will charge rent from TMML equal to Depreciation calculated under Companies Act, 1956 on Straight Line Method (Double shift basis). Any m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nal, has looked into the clauses of the agreement which are the basic ingredients for deciding the levy of tax under section 3-F of the Act. It is further argued that for leasing out the machinery to MTTL, there is liability to pay service tax under the Finance Act, 1994 and the same has been paid. To support his contention, he has relied upon the averements made in paragraph no. 10 of the affidavit filed in support of the revision, which reads as under:- 10. That it is further submitted that the revisionist admits and deposits service tax on the entire lease rent received from TMML treating the same as service. To further strengthen his arguments, he has relied upon the judgement of the Apex Court in the case of State of A.P. Another Vs. Rashtriya Ispat Nigam Limited (2002) 3 SCC 314 and the judgement of this Court in the Commissioner, Trade Tax, U.P. Vs. M/s Jamuna Prakash Jaiswal (2008) 13 VST 403 and submits that in view of the observations made in the aforesaid cases, no tax under section 3-F can legally be imposed upon the revisionist. It is further submitted that whenever motor vehicles are sold, then under section 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ast Court of fact, with regard to clauses of the agreement and case-laws on the subject, it will be appropriate that the matter should be remanded back to the Tribunal for reconsideration of the issue afresh. With regard to the next issue, relating to levy of tax under section 3AAA of the Act, the assessment orders of the two parties, namely, M/s Automobiles Sterling and M/s Unique Motor, which are on record, show that tax has been levied and the tabulation, at the bottom of the assessment orders, itself reveals that the tax was deposited, which includes the tax levied on motor vehicle. On this issue also, the learned counsel for the revisionist has submitted that the assessment order were on record, but the Tribunal as well as the lower authorities have failed to get it verified from the respective Assessing Authorities. In view of the aforesaid facts, the matter is remanded to the Tribunal for reconsideration of the issues, as discussed above, in accordance with law. The revision is, accordingly, allowed and the questions of law are, accordingly, answered. Learned standing counsel appearing for the State does not ..... X X X X Extracts X X X X X X X X Extracts X X X X
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