TMI Blog2022 (12) TMI 1139X X X X Extracts X X X X X X X X Extracts X X X X ..... f the contract since the situs of the sale which has been executed at Guwahati, the State of Tripura has no jurisdiction in so far as levying of tax by the respondents upon the petitioner - Petition allowed. - WP(C) 565 OF 2021 - - - Dated:- 21-12-2022 - HON BLE THE CHIEF JUSTICE (ACTING) HON BLE MR. JUSTICE ARINDAM LODH For the petitioner (s) : Mr. Somik Deb, Sr. Advocate. Ms. N. Gupta, Advocate. For the respondent (s) Mr. K. De, Addl. G.A. JUDGMENT ORDER(ORAL) [T. Amarnath Goud, ACJ] By filing the present writ petition, the petitioner has prayed for the following reliefs: (i) Issue Rule, calling upon the respondents and each one of them, to show cause as to why a Writ of Certiorari and/or in the nature thereof, shall not be issued, for transmitting the records, lying with the respondents, for rendering substantive and conscionable justice to the petitioner, and for quashing/setting aside the impugned Order of Assessment dated 31.03.2021 the impugned Demand Notices, each dated 31.03.2021 (Annexures-4 5 respectively supra); (ii) Issue Rule, calling upon the respondents and each one of them, to show cause as to why a Writ of Mandamus an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on requisition placed by the receiving destinations of the IOCL. But, during the process of execution of those work orders, the Superintendent of State Tax, Charge-IV, Government of Tripura, the respondent no.3, herein, initiated an assessment proceeding, under Section 31 of the Tripura Value Added Tax Act,2004, (TVAT Act, for short) against the petitioner and passed an Order of Assessment dated 31.03.2021 levying with a liability to pay tax of Rs.6,79,666/- and Rs.7,70,059.12/- to the petitioner for the Assessment Years 2015-2016 2016-2017 respectively; and in furtherance thereof, the respondent No.3 had also issued two demand notices, dated 31.03.2021, for payment of the aforesaid amounts as value added tax, interest and penalty. The petitioner by filing the instant writ petition has prayed for setting aside/quashing the aforesaid Order of Assessment dated 31.03.2021 and also the two demand notices dated 31.03.2021. 3. Heard Mr. Somik Deb, learned senior counsel assisted by Ms. N. Gupta, learned counsel appearing for the petitioner as well as Mr. K. De, learned Addl. G.A. appearing for the State-respondents. 4. Mr. Somik Deb, learned senior counsel at the outset sub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the transfer of right to use the vehicle constitute sale within the definition of the ambit of sale as embodied in section 2(33) of the Assam Act. After considering the various judgments of the Apex Court, the Division Bench observed that: It is, therefore, clear that in order to constitute a transfer of right to use goods, there must be parting with the possession of the goods for the limited period of its use in favour of the lessee by the lessor. The effective control of the goods must not remain with the owner, but must stand transferred to the lessee for the use by the latter at his will and it is this transfer of the effective control of the goods, which attracts sales tax. 4.3 In the case of Commissioner, VAT, Trade and Taxes Department (supra), a Division Bench of Delhi High Court held that- 8. We take up firstly the second contention of the parties viz. whether the transaction in question is one of services or of sale of goods. Further, if the transaction in question contains both the components of a sale of goods and services also, whether such a transaction can only be taxed as a service or can also be taxed as a sale of goods. The related aspect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment or any other valuable consideration and the word 'Sell' with all its grammatical varieties and cognate expressions shall be construed accordingly. 4.6 In the said judgment i.e. Commissioner of Sales Tax (supra), at Para 12, the Bombay High Court referring to the decision in Bharat Sanchar Nigam Ltd. Vrs. Union of India reported in [2006] 3 VST 95(SC) has observed thus: 12. In the judgment, it has been held that to constitute a transaction for the transfer of the right to use the goods, it is necessary that there must be a consensus ad idem as to the identity of the goods. It is further necessary that the transferee should have a legal right to use the goods, all legal consequences of such use including any permissions or licences required therefor should be available to the transferee and for the period during which the transferee has such legal right, it has to be and to the exclusion of the transferor. The Apex Court held that this is concomitant to the licence to use the goods. The another condition that has been laid down is that having transferred the right to use the goods period for which it is to be transferred, the owner cannot again transfer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment or any of the State Governments or a local authority; (b) an advertising concern or agency; (c) a casual trader; (d) a company, firm, club, association, society, trust, or cooperative society, whether incorporated or un-incorporated, which carries on such business; (e) a commission agent, a broker, a del credere agent, any auctioneer or any other mercantile agent by whatever name called, who carries on the business of buying, selling, supplying or distributing goods on behalf of any principal; (f) an agent of a non-resident dealer or a local branch of a firm or company or association situated outside the State; (g) a person who sells goods produced by him by manufacture or agriculture or otherwise; (h) a person engaged in the business of transfer otherwise than in pursuance of a contract of property in any goods or cash, deferred payment or other valuable consideration; (i) a person engaged in the business of transfer of property in goods (whether as goods or in some other form) involved in the execution of a works contract; (j) a person engaged in the business of delivery of goods on hire purchase or any other system of payment by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bers are provided by the petitioner/dealer. Hence, the State of Tripura has jurisdiction to levy tax, in connection with such agreements. In support of his submission, learned Addl. G.A. has placed reliance upon a decision of the Gauhati High Court in Dipak Nath Vrs. Oil Natural Gas Corporation Ltd. Ors., reported in (2010) 2 GLR 496. 9. After hearing learned Mr. K. De, learned Addl. G.A. appearing for the respondents herein, we are not inclined to appreciate his submission and the judgment cited by him as the said judgment is in clear distinction with the facts of the present case. 10. This court finds force in the argument of Mr. Deb, learned senior counsel on the point that respondents have no jurisdiction and there is no transfer/sale and further the situs of sale. The judgments cited above are relevant to the facts of the case and they are settled on the issue which has fallen to the consideration of this court. This court is of the considered opinion that the owner of the cylinder is IOCL. The transport/supply does not fall within the ambit of transfer of goods as defined in sale . Further, when transaction has taken place in Assam, the respondent authorities c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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