TaxTMI 
TaxTMI 
2019 (12) TMI 532
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.... been dismissed. Heard Shri Jaideep Mathur, learned Senior Counsel, assisted by Shri Mudit Agarwal, learned counsel for the revisionist and Shri Sanjay Sharim, learned standing counsel for the Revenue. This Court, on 16.04.2018, had admitted the aforesaid revision on the following question of law:- "1. Whether the presumption under Section 3-AAA of the U.P. Trade Tax Act,1948 could be invoked and the sale made by the revisionist to its authorised dealers who are registered dealers under the U.P. Trade Tax Act, 1948 be taxed despite the fact that the motor vehicles/chassis sold by the revisionist are taxable at the point of sale to the consumer and the authorised dealers of the revisionist have admitted, collected and deposite....
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....rt, TMML), which is a joint venture Company engaged in building of bodies of low floor buses and bus bodies and mounting. The revisionist entered into an agreement on 18.12.2007 with TMML, by which certain machineries were given for use in the factory premises. The Revenue has imposed tax under section 3-F of U.P. Trade Tax Act treating the same as transfer of right to use the goods for valuable consideration. It is further averred that without looking into the clauses of the agreement and the nature of contract, when the machinery was in its effective control, the Tribunal as well as the lower authorities have imposed the tax illegally. It is further averred that under section, 3AAA of the U.P. Trade Tax Act, 1948, the liability of t....
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....hall not be entitled to take any loan and/ or any subsidy from any person/ authority in respect of the machinery/ equipment. It is also specifically agreed that TMML shall not mortgage/ sublet/ hypothecate those machinery/ equipments or create any third party rights. 5. Location: TMML shall keep the machinery /equipments at all time in the said premises allotted by TML and the same shall not be removed there from without TML's written consent. TMML shall arrange the machinery and equipment provided by TML as per the installation plan to be prepared by TMML. It is specifically agreed between the parties that TMML shall solely be responsible for ensuring compliance with all applicable safely related norms in respect of t....
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....and inspect and / or test the machinery / equipment and observe the manner of its use. If at any time it is found that the machinery/ equipment is not used properly, TML shall have a right to instruct TMML about the same and TMML shall be found by the same. 9. Loss of Damage: TML shall arrange for the insurance of machines and equipment provided to TMML at its own costs and the entire risk of loss or damage to the machinery/ equipment under this Agreement from any cause other than loss or damage due to misuse, mishandling or negligence on the part of TMML, shall be borne by TML. In this regard the decision of TML shall be final and binding on TMML. In case, the loss or damage is due to negligence or mishandling or....
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.... the revisionist admits and deposits service tax on the entire lease rent received from TMML treating the same as service." To further strengthen his arguments, he has relied upon the judgement of the Apex Court in the case of State of A.P. & Another Vs. Rashtriya Ispat Nigam Limited (2002) 3 SCC 314 and the judgement of this Court in the Commissioner, Trade Tax, U.P. Vs. M/s Jamuna Prakash Jaiswal (2008) 13 VST 403 and submits that in view of the observations made in the aforesaid cases, no tax under section 3-F can legally be imposed upon the revisionist. It is further submitted that whenever motor vehicles are sold, then under section 3AAA of the Trade Tax Act, tax can be imposed only at the point of sale to the consumer and admitt....
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....revision is liable to be dismissed on this ground alone. The Court has perused the records. On perusal of the orders passed by the Tribunal as well as lower authorities, it would reveal that only the factual averments have been made therein. None of the clauses of the agreement has been referred to or looked into and merely on the basis of the leasing rent amount being received, the liability under section 3-F of the Act has been confirmed. Learned Senior Counsel has placed reliance upon the judgements of the Apex Court as well as this Court and submitted that there is no liability of tax which can be fasten upon the revisionist as per law. Since the fact of the case has not been looked into by the Tribunal, being a last Court o....