2013 (3) TMI 183 - HC - VAT and Sales Tax

Court stresses prima facie merits before granting interim stay on tax imposition under U.P. VAT Act

The Court emphasized the need to consider prima facie merits before granting interim stay on tax imposition under the U.P. Value Added Tax Act, 2008. The ... Treating the utilization of the towers for installing antenas as a transfer of right to use goods for valuable consideration - revisionist was granted stay of 50% of the tax imposed whereas in further appeal to the tribunal stay to the extent of 85% of the tax imposed has been granted - Held that:- The tribunal while considering the stay application have not looked into the prima-facie merits of the case and have disposed of the stay matter only on the basis of the financial condition of the revisionist as for grant of interim protection prima-facie merits of the case are necessary to be considered. According to assessee in allowing use of the tower for the purpose of installation of antenas there is no transfer of any right in any goods in as much as it has been held by different High Courts that towers which have been erected and are permitted to be used for the purpose are not goods - As this aspect definitely needs consideration by the appellate authority and there may be sufficient good chance of success of the revisionist & the tribunal as well as the appellate authority in deciding the interim stay application have not taken into consideration the prima-facie merits of the above argument the revision is disposed of with the direction to the appellate authority to proceed and decide the pending appeal of the assessee in accordance with law as expeditiously within a period of one month from the date of this order. Issues Involved:Assessment under U.P. Value Added Tax Act, 2008 for utilization of tele-communication towers for installation of antennas. Grant of interim stay on tax imposition based on financial condition without considering prima facie merits of the case.Assessment under U.P. Value Added Tax Act, 2008:The judgment pertains to the assessment of the revisionist under the U.P. Value Added Tax Act, 2008 for allowing tele-communication companies to utilize the tele-communication towers for installing antennas. The assessing authority treated this utilization as a transfer of right to use goods for valuable consideration under Section 3(a)(c)(iv) of the Act. The revisionist challenged this assessment, leading to appeals and subsequent grant of stay on tax imposition by the appellate authority and the tribunal. The revisionist argued that the towers, being erected structures used for a specific purpose, do not constitute goods. The Court emphasized the necessity to consider the prima facie merits of the case for granting interim protection, directing the appellate authority to decide the pending appeal expeditiously within a specified timeframe.Grant of Interim Stay without Considering Prima Facie Merits:The key issue addressed in the judgment is the grant of interim stay on tax imposition by the appellate authority and the tribunal without adequately considering the prima facie merits of the case. The revisionist contended that the stay was granted solely based on the financial condition without delving into the substantive aspects of the argument regarding the nature of the towers and the absence of any transfer of goods. The Court acknowledged the importance of assessing the chances of success of the revisionist's argument and directed the appellate authority to proceed with the appeal and decide it in accordance with the law within a specified timeline. The revision was disposed of with the condition that no tax shall be realized for a specific period subject to the revisionist furnishing security to the satisfaction of the authority concerned.---