TaxTMI 
TaxTMI 
2013 (3) TMI 314
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.... to the writ petition. Briefly stated, the facts giving rise to the present writ petition are as follows: - The petitioner is a Public Limited Company incorporated under the provisions of the Companies Act, 1956, having it's registered office at 1/7, Ram Kishore Road, Civil Lines, Delhi - 110054. It has a corporate office at Plot No. 2-D, Sector 126, Noida, District Gautam Budh Nagar. The petitioner is a registered dealer under the provisions of U.P. VAT Act, 2008 (hereinafter referred to as the 'Act'). It is the registered owner of the trade mark "HAVELLS". During the assessment year 2008-09, it had transferred the right to use it's trade mark to M/s. Havells India Ltd. and had received a consideration of Rs. 3,79,65,114.00. The agreeme....
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....r. Shri C.B. Tripathi appears for the State respondents. The supplementary affidavit has been filed today. A trade mark means a mark as defined under Section 2 (zb) of the Trade Marks Act, 1999, capable of being represented graphically and which is capable of distinguishing the goods or services of one person from those of others, and may include shape of goods, their packaging and combination of colours. A registered user of trade mark under Section 37 of the Trade Marks Act, 1999 has power to assign the trade mark and to give effectual receipts for any consideration for such assignment. A registered trade mark is assignable and transmissible, whether with or without the goodwill of the business, under Section 38, in respect either of al....
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....r the Act and the Rules issued tax invoice on which M/s Havells India Ltd. has claimed input tax credit. Since the tax invoice could not be issued of the goods in which only right to use is transferred, including the intangible goods like intellectual property rights, the petitioner has committed an offence under Section 54 (1) (11) of the Valued Added Tax Act, 2008. The notice calls upon the petitioner to appear in the office of the Deputy Commissioner with his explanation, failing which proceedings for penalty will be concluded against him. Learned counsel appearing for the petitioner submits that under the agreement the right to use trade mark, which is intangible good and an asset can be transferred by sub-licensing the license under C....
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....penalty passed against the petitioner, however, shall not be given effect to." Affidavits have been exchanged between the parties. We have heard Sri B.K. Pandey, learned counsel for the petitioner and Sri C.B. Tripathi, learned Special Counsel appearing for respondent nos. 1 and 2. Sri Pandey, learned counsel, submitted that transfer of the right to use trade mark is a 'goods' notified in Schedule II u/s 4(1)(a) of the Act and Sl. No. 1 takes into its fold all intangible goods, like copyright, patent, rep. license, etc. transfer of right to use of goods. He thus submitted that the transfer of the right to use trade mark is treated as 'goods' under the Act and it's transfer of right to use is taxable @ 4%. He submitted that under the lice....
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.... to tax @ 4% as it is to be treated as 'goods' u/s 4(1)(a) of the U.P. VAT Act, read with Schedule II Entry No. 3. The petitioner had transferred the right to use the trade mark for a consideration of Rs. 3,79,65,114.00 during the assessment year 2008-09 to respondent no. 3 under the agreement dated 21.11.2007, filed as annexure 1 to the supplementary affidavit. The petitioner had charged tax @ 4% and had also issued tax invoices. The amount of tax charged by it had been deposited with respondent no. 2. Section 22(1) of the Act empowers the selling dealer to issue tax invoices in respect of taxable goods while effecting it's sale, unless such goods are covered by the payment of composition money u/s 6 of the Act. In the present case, we fi....