TaxTMI 
TaxTMI 
2008 (4) TMI 680
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....t pages 22-23 of the revision petition, but at the time of argument only the following questions were pressed: (i) Whether, under the facts and circumstances of the case, the plant and machineries having suffered Orissa sales tax at the time of purchase inside the State of Orissa the lease rental received on leasing out those plant and machineries can be taxed? (ii) Whether, under the facts and circumstances of the case, the transfer of property in goods and the transfer of right to use the goods are two distinctly separate taxable events once as sale and secondly as deemed sale in the face of the legislative intent of single-point taxation as provided under section 8 of the Orissa Sales Tax Act? (iii) Whether, under the facts and....
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....24th month of the lease agreement and thereafter at the rate of 15.85 per cent per thousand per month which is payable from the 25th month to the 84th month. On such transaction the Sales Tax Officer, Koraput II Circle, Rayagada, by his order dated February 16, 1998 assessed the petitioner under section 12(5) of the Orissa Sales Tax Act, 1947 (hereinafter called "the OST Act") for the quarters ending June 1997 and September 1997 and raised a demand of Rs. 8,07,420, surcharge of Rs. 80,742. Over and above the same penalty of Rs. 8,07,420 was imposed on the ground of non-registration of the petitioner under the jurisdiction of the Sales Tax Officer, Koraput II Circle, Jeypore. Being aggrieved by the said order of assessment, the petitioner f....
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....e subject to first-point tax. The said item 175 of the list published in the OST Act is set out below: "175. Machinery, machinery parts, spare parts, component parts and accessories thereof and tools." In fact the aforesaid items of goods were notified in 1989 vide Notification No. 44987-CTA-105/89-F dated December 22, 1989 which was given effect from January 1, 1990 and the said goods also remained notified in the subsequent Notification No. 1691-CTA-37/2001-F dated January 9, 2002 which was given effect from March 1, 2002. Relying on the aforesaid facts, learned counsel for the petitioner urged that admittedly the petitioner while purchasing the goods had paid first point tax at the rate of 16 per cent amounting to Rs. 57,60,000 and th....
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....d to tax again. Dealing with section 5E of the Andhra Pradesh General Sales Tax Act, 1957 and the 46th Amendment of the Constitution of India, the learned judges held that under the Constitution both sales and deemed sales as provided belong to the same category vide clause (29A) to article 366 of the Constitution. Therefore, this cannot be provided separately for the purpose of taxation within the definition of "sale" in the Andhra Pradesh tax laws. The learned judges further held that since the basic norm regulating the tax structure under the Andhra Pradesh General Sales Tax Act is confined to levy of tax at single point, levy of tax on a second sale in respect of goods which have already suffered tax is impermissible and therefore, a de....
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....have meant the first of such sales effected by a dealer liable under the Act after the goods are actually taken delivery of by him inside the State of Orissa." It cannot be disputed that the lease rental received by the petitioner from JK Corp Ltd. is under a deemed sale under clause (29A) of article 366 of the Constitution read with section 2(g) of the OST Act. In view of the aforesaid judgment of the Andhra Pradesh High Court in I.T.C. Classic Finance [1995] 97 STC 330 the said deemed sale cannot be distinguished from an ordinary sale. The said judgment of the Andhra Pradesh High Court in I.T.C. Classic Finance [1995] 97 STC 330 has been affirmed by the honourable Supreme Court in 20th Century Finance Corpn. Ltd. v. State of Maharashtra r....