TaxTMI 
TaxTMI 
2021 (2) TMI 1099
X X X X Extracts X X X X
X X X X Extracts X X X X
....e filed against two separate assessment orders dated 12.05.2014 passed by the third respondent in Rc.B1/1418/2013 for the Assessment Years 2012-2013 and 2013-2014. 3. The petitioner a unregistered dealer under the provisions of the Tamil Nadu Value Added Tax Act, 2006 was issued with a notice by the third respondent Assistant Commissioner, Ranipet (SIPCOT) on 10.01.2014 for the Assessment Years 2012-2013 and 2013-2014. 4. In the notice, it is alleged that the petitioner was providing material handling object, namely, cranes to Bharath Heavy Electricals Limited (hereinafter referred to as BHEL for brevity), the sixth respondent herein, on "transfer of right to use" basis and therefore was liable to pay tax under Section 4 of the Tamil Nadu Value Added Tax Act, 2006. The petitioner replied to the same vide reply dated 23.01.2014. The petitioner also enclosed the copies of the agreements signed with the sixth respondent BHEL. The said notice was culminated in two different assessment orders both dated 12.05.2014 of the third respondent for the Assessment Years 2012-2013 and 2013-2014 respectively. 5. These assessment orders were challenged before the second respondent Appellate Dep....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e contractor shall obtain pollution (exhaust emission under control) certificate from State Government authorities once in six months as per statutory norms. 22. It is the responsibility of the drivers to get filled all the columns in the trip register and got signed by the user. In case the loss of original trip register, BHEL reserves the right not to entertain the claim. 23. The drivers of the cranes should wear proper uniform and should have valid driving license during the contract period. The riggers should wear proper personal protective equipments like Hand gloves, Safety Shoes etc. for work execution without which they will not be permitted to work. 25. No crane shall be allowed to be parked inside BHEL premises after the stipulated working hours. 27. If the contractor is not able to provide the crane originally offered for a continuous period of 15 days, BHEL reserves the right to terminate the contract and to take appropriate action against the contractor, including forfeiture of security deposit. 28. Payment will be made based on the basis of actual working certified by the official in charge. 33. Service Tax registration number is to be submitted along with....
X X X X Extracts X X X X
X X X X Extracts X X X X
....debt or a beneficial interest in the movable property but the right transferred by the petitioner is a transfer of a right in the trade mark, a trading style which are incorporeal rights and are intangible things and transfer of such incorporeal right is undoubtedly exigible to tax. Therefore, the decision of the Hon'ble Supreme Court in the case of Sunrise Associates (supra) does not lend any support to the case of the petitioner. 27. Similarly, the decision in the case of Yasha Overseas also which considered the judgment in Vikas Sales Corporation observed that the decision has not been over ruled by the decision of the Constitution Bench in Sunrise Associates and pointed out that DEPB has an intrinsic value that makes it a market commodity and therefore, DEPB like REP licence qualifies as 'goods' within the meaning of the sales tax laws and its sale is exigible to tax. We find that this decision is of no assistance to the case of the petitioner. 29. We have perused the conditions of the agreement, dated 27.09.2002 entered into by the petitioner from which we find that the petitioner has transferred their right to use their trade mark, good will, reputation exclusively to....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e of incorporeal goods for consideration and therefore, taxable under the TNGST Act. Aggrieved by such order, the assessee preferred an appeal before the State Taxation Tribunal which dismissed his appeal and the assessee filed a writ petition before this Court challenging the order of the Tribunal. It was contended before this Court that the agency was given a mere right to enjoy the trade mark for a period and the amount received was only towards royalty and hence, should have been exempted while calculating the turnover. The Revenue submitted that the transaction is a sale of incorporeal goods. The Division Bench after referring to various clauses in the agreement between the parties therein took note of the decision of the Hon'ble Supreme Court in the cases of Rashtriya Ispat Nigam Ltd. v. Commercial Tax Officer, reported in 77 Sales Tax Cases 182; Vikas Sales Corporation v. Commissioner of Commercial Taxes, reported in 102 STC 106, Commissioner of Sales Tax v. Duke & Sons; Aggarwal Brothers v. State of Haryana, reported in 113 STC 317; 20th Century Finance Corporation Limited v. State of Maharashtra and held that the transfer was right to use and not a mere right to enjoy.....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... first shift shall not be engaged in the second shift. 14. Under the agreement, the petitioner was merely required to supply required number of cranes for the purpose of material handling and for the purpose of loading/unloading. The facts that the lifts will be operated by the drivers of the petitioner and that the crane will not be parked inside the 6th respondent BHEL premises after the stipulated working hours make its clear that it is the petitioner who was in effective control of these material handle equipments / cranes. Further, the agreement also indicates that trip register should be maintained by the petitioner's driver and that in case the loss of original trip register, the sixth respondent BHEL should not entertain the claim of the petitioner. The agreement also stipulates that the service tax will be paid by the petitioner. 15. The fifth respondent Commissioner of Service Tax has also filed a counter affidavit, wherein, it has been reiterated that the petitioner was liable to pay service tax for the service rendered by it. 16. In Bharath Sanchar Nigam Limited and Another Vs. Union of India and Others, (2006) 145 STC 91 : (2006) 3 SCC 1, the Hon'ble Suprem....