TaxTMI 
TaxTMI 
2019 (12) TMI 623
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....ly payable by a dealer as defined in the Expla(nation appended to Sub-section 1) of Section 8 of the U.P. Trade Tax Act, for the purposes of computation of interest under the said sub-section ?" Learned counsel for the revisionist submits that in view of the order passed by this Court today in the companion Trade Tax Revision No. 34 of 2018, the levy of interest will have to be reconsidered by the Tribunal and hence, the matter may be remanded back to the Tribunal for reconsideration of the matter afresh. This Court today, in companion Trade Tax Revision No. 34 of 2018, has passed the following order:- "The present revision has been filed against the order dated 12.01.2018 passed by the Commercial Tax Tribunal, Bench - 3, Lucknow in Second Appeal No. 33 of 2011 for the assessment year 2007-08 (for the period from 01.04.2007 to 31.12.2007), by which the appeal of the revisionist has 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 f....
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.... 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 tax on the motor vehicle is at the point of sale to the consumer and admittedly, the sale has been made by the revisionist to the registered dealers, but still tax has wrongly been imposed upon it. Even though the registered dealers had admitted their liability and deposited their tax, but still the Revenue has imposed tax which amounts to double taxation, which is not permissible under the Act. Learned senior counsel has submitted that the agreement dated 18.12.2007 specifically provides that there is no effective transfer of right to use the goods; hence, the liability fasten upon the revisionist is bad in law. In support of his contention, he has relied upon clauses 4, 5, 6 (b), 7, 8 & 9 of the aforesaid agreement, which are quoted below:- "4. Ownership: (a) The machineries/ equipments/ inputs provided by TML under....
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....d between the parties. In addition to rent, TMML shall reimburse to TML taxes (including service tax), if any, payable on the rent. TML will raise its debit note for the rent and TMML will pay the amount within 7 days from the date of debit note. In the debit note, TML shall show the service tax or any other tax separately. 8. Inspection by TMML:- TML shall have a right at all reasonable time to enter in the said premises where the machinery / equipment under this Agreement is installed 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 cas....
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....ers. The registered dealers have given Form 3-A prescribed under the Act. Two registered dealers could not submit the form and the tax was imposed upon them. He further submits that the two registered dealers, namely, M/s Automobiles Sterling and M/s Unique Motor, have deposited the tax. The said fact is evident from their assessment orders. It is further submitted that the averments made in paragraph no. 43 of the affidavit filed in support of the revision have not been denied by the State in paragraph no. 42 of the counter affidavit. It is further submitted that in view of the aforesaid fact, the tax imposed upon the sale of motor vehicles to above-mentioned two registered dealers cannot be imposed again. Rebutting the submissions of the learned counsel for the revisionist, learned standing counsel for the Department submits that the machinery has been given to TMML and tax has been imposed for transfer of use for valuable consideration and the control of the said machinery. Therefore, tax under section 3-F has rightly been imposed upon it. He further submits that under section 3AAA of the Act, the tax is levied if the sale is made to other registered dealers and in abse....