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TMI Blog2022 (12) TMI 1139X X X X Extracts X X X X X X X X Extracts X X X X ..... ling upon the respondents and each one of them, to show cause as to why a Writ of Mandamus and/or in the nature thereof, shall not be issued, mandating/commending them, to forthwith revoke/rescind the impugned Order of Assessment dated 31.03.2021 & the impugned Demand Notices, each dated 31.03.2021 (Annexures-4 & 5 respectively supra), and thereupon, relieve the petitioner from taxable liability; (iii) Issue Rule, calling upon the respondents and each one of them, to show cause as to why a Writ of Prohibition and/or in the nature thereof, shall not be issued, for restraining/prohibiting the respondents, from acting in any manner, in furtherance of the impugned Order of Assessment dated 31.03.2021 & the impugned Demand Notices, each dated 31.03.2021 (Annexures-4 & 5 respectively supra); (iv) In the Ad-interim, and thereafter, on hearing the parties, in the Interim, an Order, in terms of Prayer (iii) supra; (v) Call for the records, appertaining to this writ petition; (vi) After hearing the parties, be pleased to make the Rule absolute in terms of (i) to (ii) above; (vii) Costs of and incidental to this proceeding; (viii) Any other Relief(s) as to this Hon'ble High Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Somik Deb, learned senior counsel at the outset submits that the respective Work Orders as well as the agreement would reveal that there was 'no transfer of right to use goods' by the petitioner as in case of a written contract, constituting a transfer of used goods, the situs of sale would be the place where the property in goods passes, i.e. where the written agreement, transferring the right to use is executed. Mr. Deb, learned Sr. counsel also contends that in the instant case, the written agreements were executed in Guwahati, Assam, and therefore, the situs of the sale would be at Guwahati, Assam and hence, the taxing authorities in Tripura would have no jurisdiction whatsoever, to levy any tax, in connection with such agreement. 4.1 Mr. Deb, learned sr. counsel in support of his submission, has placed reliance on the following case laws: (i) Indian Oil Corporation Ltd. Vrs. Commissioner of Taxes, Assam & Ors., [2009] 22 VST 70 (Gauhati); (ii) Commissioner, VAT, Trade and Taxes Department Vrs. International Travel House Ltd., [(2009)] 25 VST 653 (Delhi); (iii) Commissioner of Sales Tax, Maharashtra State, Mumbai Vrs. General Cranes, [2015] 82 VST 560 (Bom); (iv) 20t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The related aspect which will also come in, is, if the contract is not severable as per the intention of the parties because separate values have not been fixed for the purposes of sale of goods and for sale of services; whether such a non-severable contract can be split up for taxing the sale of goods or even if it is not split up can the whole value of the contract be taken as the value of the sale of goods." 4.4 In the aforesaid judgment, the Division Bench also at Para 9 (ii) held that- "9.(ii) Except the specific contracts so provided under Article 366(29-A) no other contracts can be artificially severed to tax the sale element with respect to goods as comprised in such composite contracts. Therefore, where the contracts are composite contracts, including therein both aspects of sale of goods and services, such contracts which are other than those specified in Article 366(29-A) (b) and (f), then such other contracts not falling within such subclauses of Article 366(29-A) cannot be split up taxing the sale element in the goods component thereof and which was only possible if the parties had in mind or intended that separate rights arising out of sale of goods and if there wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts to others. It would thus be seen that unless all the requirements are transferred, the transaction will not come within the meaning of "Transfer of the rights to use any goods". 5. At this juncture, we may now, refer Section 4 of the Tripura Value Added Tax Act, 2004 (for short, the Act, 2004) which reads thus: 4. Tax on deemed sales. - (1) Notwithstanding anything contained elsewhere in this Act, any transfer of property in goods (whether as goods or in some other form) involved in the execution of a works contract shall be deemed to be a sale of those goods by the person making the transfer and shall liable to be taxed at the rate specified in the Schedule: Provided that in respect of any such transfer, only so much value of the goods involved in the works contract which has actually been paid to the dealer during the period, shall be taken into account for determining the turnover for the period. Explanation. - For the purpose of this section, "Property in goods" shall mean the aggregate of the goods for which amounts have been received or receivable by a dealer during such period as valuable consideration, whether or not such amount has been separately shown in the wo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ght to use any goods for any purpose (whether or not for a specified period) for cash, deferred payment or commission or remuneration or any other valuable consideration; (l) a department of the Central Government or any State Government or a Local Authority by name of any Panchayat, Municipality, Development Authority, Cantonment Board or any autonomous or statutory body including a Port Trust and the like, which, whether or not in the course of business, buys, sells, supplies or distributes goods, directly or otherwise, for cash, or for deferred payment, or for commission, remuneration, or other valuable consideration; (m) a Hindu Undivided Family or any other system of joint family which carries on business." 7. Sub-section (25) of Section 2 defines the word "Sale" which reads thus- "(25) [(i)] "Sale" with all its grammatical variations and cognate expressions means every transfer of the property in goods (other than by way of a mortgage, hypothecation, charge or pledge) by one person to another in the course of trade or business for cash or for deferred payment or other valuable consideration, and includes - a) transfer otherwise than in pursuance of a contract of pro ..... X X X X Extracts X X X X X X X X Extracts X X X X
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