9911796707
TMI Blog2021 (2) TMI 1035X X X X Extracts X X X X X X X X Extracts X X X X ..... ll for the records relating to the order passed by the respondent in his proceedings in Rc.B1/1418/2013 dated 05.12.2014 relating to Assessment Year 2012-2013 and quash the same as without jurisdiction, illegal, arbitrary and error on the face of record. 3 15622/2015 Rc.A3/1418/2013 dated 10.03.2015 To call for the records relating to the order passed by the 1st respondent in his proceedings in Rc.A3/1418/2013 dated 10.03.2015 and quash the same as illegal, arbitrary and error on the face of record. 3. Since the ranks of the respondents vary in these writ petitions, the names of the respondents are mentioned in this common order to avoid the confusion. 4. The impugned orders in the first two Writ Petitions pertain to levy of tax under Section 4 of the Tamil Nadu Value Added Tax Act, 2006 on the ground that the petitioner has effected sale within the meaning of extended definition of sale under Section 2(33) of the Tamil Nadu Value Added Tax Act, 2006 of transfer of right to use of goods and is liable to tax. 5. It is the contention of the learned senior counsel for the petitioner that the petitioner was supplying cranes under the agreement to the Bharath Heavy Electricals Li ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re 3 in any one. Condition 23 :- During the contract period the contractor shall maintain the crane always in good working condition to the fullest satisfaction of BHEL. BHEL reserves the right to terminate the contract in case they are not so maintained to the satisfaction of BHEL. Condition 38 :- No crane shall be allowed to be parked inside BHEL premise after the stipulated hours. Condition 39 :- The crane shall be reported in full readiness for the entire day's operation with sufficient fuel and other commerce with fitting crew. The crane and crew should be made available continuously throughout the contract period including holidays and Sundays without any break according to BHEL requirement. 44 (a) Arbitration:- (IV) The Contractor shall, notwithstanding any disagreement, disagreement, dispute, protest, request for arbitration, court or other proceedings, continue to perform the services in accordance with the derminations, instructions and clarifications of BHEL. 8. He further submits that no case was made out for levying tax under Section 4 of the Tamil Nadu Value Added Tax Act, 2006 as there was no "transfer of right to use goods" involved in the transacti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the sales tax laws and its sale is exigible to tax. We find that this decision is of no assistance to the case of the petitioner. 29. We have perused the conditions of the agreement, dated 27.09.2002 entered into by the petitioner from which we find that the petitioner has transferred their right to use their trade mark, good will, reputation exclusively to the franchisee in respect of a particular outlet and any misuse of such exclusively licensed right rendered, the franchisee open to action which meant to include the termination of agreement in terms of XIV of the said agreement. Therefore, it is a case where goods which are in the nature of intangible or incorporeal goods were available for delivery there were consensus adidem to the identity of such goods as the transferee has a legal right to use the goods and during the period when the agreement was in force, namely for a period of 10 years it was an exclusive right given to the transferee by the petitioner in respect of a particular store and consequently a transfer of right to use and not merely a licence to use the goods and during the period when the agreement was in force, the petitioner as the transferor could not t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted in 77 Sales Tax Cases 182; Vikas Sales Corporation v. Commissioner of Commercial Taxes, reported in 102 STC 106, Commissioner of Sales Tax v. Duke & Sons; Aggarwal Brothers v. State of Haryana, reported in 113 STC 317; 20th Century Finance Corporation Limited v. State of Maharashtra and held that the transfer was right to use and not a mere right to enjoy. It was pointed out that for transferring the right to use the trade mark, it is not necessary to hand over the trade mark to the transferee or give control or possession of the trade mark to him and it could be done merely by authorizing the transferree to use the same in the manner required by law and the right to use the trade mark could be transferred simultaneously to any number of persons. It was held that the assessee in the said case retained the liberty to use the mark in the event of the licensor started to manufacture the products equally it retained the liberty to grant licence to any other individual person or company to use the trade mark and such right being an intangible or incorporeal goods which can be merchandised by the registered owner and as pointed out by the Hon'ble Supreme Court the word 'goods' is ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
