TMI Blog2021 (2) TMI 1035X X X X Extracts X X X X X X X X Extracts X X X X ..... of the case, there is no transfer of right to use and no case was made out for recovery of tax amount from the petitioner under Section 4 of the Tamil Nadu Value Added Tax Act, 2006 - the impugned orders are liable to be quashed and are accordingly quashed - petition allowed - decided in favor of petitioner. - W.P.Nos. 14472, 14534 & 15622 of 2015 And M.P.Nos.1, 2, 1, & 1 of 2015 - - - Dated:- 2-2-2021 - Hon'ble Mr. Justice C. Saravanan For the Petitioner : Mr.A.Thiagarajan, Senior Counsel for Mr.S.Ramesh Kumar in both W.Ps. For the Respondent : Mr.M.Hariharan, Additional Government Pleader in both W.Ps. COMMON ORDER By this common order, all the three Writ Petitions are being disposed of. 2. In these Writ Petitions, the petitioner has challenged the following impugned orders:- Sl. No. Writ Petition No. Impugned Order No. and Date Prayer of the Writ Petition 1 14534/2015 Rc.B1/1418/2013 dated 05.12.2014 To call for the records relating to the order passed by the respondent in his proceedings in Rc.B1/1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntained in the said agreement:- Condition 4 :- BHEL reserves the right to demand the contractor to display more than the indicated number of cranes mentioned to copy up with the surge loading/unloading requirement. Condition 6 :- The contractor shall supply the quantum of cranes indicated in TABLE 2 either through their owned cranes or acquired on valid lease bares. Condition 8 :- A crane crew, consisting one trained operators and two riggers shall be provided for each crane. Condition 11 :- Cranes shall be maintained in good working condition. Condition 12 :- All the lifting tackles required for each crane for handling various type loads of BHEL are to be arranged by contractor and the lifting tackles are to be approved by BHEL compliant authority before put into use by BHEL. However for any special type of jobs/materials handling, BHEL at their discretion will provide the same under acknowledgement on returnable basis. Recovery will be made in case of non-retaining/damages. The tools and tackles of contractor shall not be mixed with BHEL tools and tackles. Condition 17 :- Since the contract is for tonnage handle basis and the payment is as per MT handled basis, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oner has transferred the right to use VITAN system, the licensed right of their names, marks, systems, insignia, symbols and goodwill. The Hon'ble Supreme Court in the case of Tata Consultancy Services (supra) held that goods for the purpose of sales tax may be intangible and incorporeal. But to qualify as an actionable claim in terms of the definition contained in Section 3 of the Transfer of Property Act, it should be only a claim, and every claim is not an actionable claim but it must be a claim to a debt or to a beneficial interest in movable property and such beneficial interest is not the movable property itself and may be existent, accruing, conditional, or contingent. The transaction done by the petitioner is not a claim nor it is a debt or a beneficial interest in the movable property but the right transferred by the petitioner is a transfer of a right in the trade mark, a trading style which are incorporeal rights and are intangible things and transfer of such incorporeal right is undoubtedly exigible to tax. Therefore, the decision of the Hon'ble Supreme Court in the case of Sunrise Associates (supra) does not lend any support to the case of the petitioner. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... riginal assessment, the turn over relating to the transaction was exempted accepting the claim that it was only royalty. Subsequently, the assessing authority took the view that the consideration was received for transfer of right to use the trade mark and hence, the same is taxable. Notice was issued to the assessee who failed to respond and the Assessing Authority proceeded on the basis that there was transfer in incorporeal goods which is taxable under the Sales Tax Act and passed orders revising the assessment. The assessee preferred appeal and the First Appellate Authority who accepted the case of the assessee and held that the reassessment was not proper. The Joint Commissioner, exercising suo motu revisional power held that transfer of trade mark is a sale of incorporeal goods for consideration and therefore, taxable under the TNGST Act. Aggrieved by such order, the assessee preferred an appeal before the State Taxation Tribunal which dismissed his appeal and the assessee filed a writ petition before this Court challenging the order of the Tribunal. It was contended before this Court that the agency was given a mere right to enjoy the trade mark for a period and the amoun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 45 STC 91 : (2006) 3 SCC 1 and in Aggarwal Brothers Vs. State of Haryanana , (1999) 113 STC 317 (SC) : (1999) 9 SCC 182. 12. Heard the learned counsel for the petitioner and the learned Additional Government Pleader (T) appearing for the respondents. 13. Though it is the contention of the learned counsel for the petitioner that they have paid the service tax and have registered with the Service Tax Authority, there are no records to substantiate the same before the this Court. 14. However, the Hon'ble Supreme Court in Bharath Sanchar Nigam Limited and Another Vs. Union of India and Others , (2006) 145 STC 91 : (2006) 3 SCC 1, has enumerated the situation, under which, there would be transfer of right to use. They are as follows:- (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 goods-consequently all legal consequences of such use including any permissions or licences required therefor 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 tr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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