TaxTMI 
TaxTMI 
2021 (3) TMI 192
X X X X Extracts X X X X
X X X X Extracts X X X X
....eference Impugned order/date Writ petition No. 2001-2002 RC.No.1242/2005 CST Act 15.10.2005 39268/2005 2002-2003 - Do- 15.10.2005 39269/2005 2003-2004 - do - 15.10.2005 39270/2005 2004-2005 - do - 15.10.2005 39271/2005 2002-2003 R.C.No.1242/2005 TNGST Act 15.10.2005 39272/2005 2003-2004 Rc.No.1242/2005 TNGST Act 15.10.2005 39273/2005 2004-2005 Rc.No.1242/2005 TNGST Act 15.10.2005 39274/2005 4. All the above mentioned notices and impugned orders contained identical allegations for which identical finding have been rendered by the first respondent in the impugned orders. 5. All these assessment orders precede a notice which called upon the petitioner to pay tax under the provisions of the respective enactments for purported "transfer of right to use" of goods. 6. The allegations in the about notices issued under Tamil Nadu General Sales Tax Act, 1959 and the Central Sales Tax Act, 1956 state that the activity carried out by the petitioner involved installation and maintenance of ATM and other allied equipments for various banks and provision of 24 hours security at site involving cash m....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... in the case on hand presence of elements namely possession and control are there. 11. The respondents have filed a counter. It is submitted that the petitioner has an alternate and efficacious remedy by way of a statutory appeal under the machineries prescribed under the provisions of the respective enactments and therefore these writ petitions were liable to be dismissed. It is submitted that the petitioner was a dealer within the meaning of the provisions of the respective enactments and a person engaged in the business of supplying by way of, or as part of any service or in any other manner whatsoever, of goods, where the supply of services was for cash, deferred payments or other valuable consideration. 12. The petitioner had also earlier obtained registration for Banking and Financial Services under the Provisions of the Finance Act, 1994 during 2002. However, the petitioner was of the view that it was not liable to pay service tax for " Banking and Financial Service" as per section 65 (11) of the Finance Act, 1994 as it stood during the period between 16.8.2002 and 28.4.2004. The petitioner was also issued with a Show Cause Notice No.4/2004-2005 by the Deputy Commissio....
X X X X Extracts X X X X
X X X X Extracts X X X X
....catering contracts [Clause (e)] by legal fiction to be divisible contracts where the sale element could be isolated and be subjected to sales tax. 18. As per Clause"[(29A) of Art. 366 of the Constitution of India, "tax on the sale or purchase of goods" includes - (a) a tax on the transfer, otherwise than in pursuance of a contract, of property in any goods for cash, deferred payment or other valuable consideration; (b) a tax on the transfer of property in goods (whether as goods or in some other form) involved in the execution of a works contract; (c) a tax on the delivery of goods on hire-purchase or any system of payment by instalments; (d) a tax on the transfer of the right to use any goods for any purpose (whether or not for a specified period) for cash, deferred payment or other valuable consideration; (e) a tax on the supply of goods by any unincorporated association or body of persons to a member thereof for cash, deferred payment or other valuable consideration; (f) a tax on the supply, by way of or as part of any service or in any other manner whatsoever, of goods, being food or any other article for human consumptio....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... tax. Thus, as per the said decision, the place where the goods were delivered or used could not be a place for levy of sales tax. The said case was also concerned with the constitutional validity of 46th amendment to the Constitution. The court upheld the constitutional validity of the amendment. 21. The above decision was however slightly diluted in Bharat Sanchar Nigam Ltd. and another Vs. Union of India and Other (2006) 3 SCC 1 ; 2006 (2) STR 2 referred to supra. The Court observed as follows:- 67. With respect, the decision in 20th Century Finance Corporation Limited v. State of Maharashtra, cannot be cited as authority for the proposition that delivery of possession of the goods is not a necessary concomitant for completing a transaction of sale for the purposes of Article 366(29A)(d) of the Constitution. In that decision the Court had to determine where the taxable event for the purposes of sales tax took place in the context of sub-clause (d) of Article 366(29A). Some States had levied tax on the transfer of the right to use goods on the location of goods at the time of their use irrespective of the place where the agreement for such transfer of right to use suc....
X X X X Extracts X X X X
X X X X Extracts X X X X
....what is claimed to be goods by the respondents, are not deliverable at all by the service providers to the subscribers, the question of the right to use those goods, would not arise 22. The concurring view of late Hon'ble Mr.Justice A.R.Lakshmanan, J in Bharat Sanchar Nigam Ltd. and another Vs. Union of India and Other (2006) 3 SCC 1 ; 2006 (2) STR 2 referred to supra summarizes the law on the subject relating to "transfer of right to use. It has given more clarity on the scope of levy of tax in the case transfer of right to use. Relevant portion of the said decision reads as under:- 91. To constitute a transaction for the transfer of the right to use the goods the transaction must have the following attributes: a. There must be goods available for delivery; b. There must be a consensus ad idem as to the identity of the goods; c. The transferee should have a legal right to use the goods-consequently all legal consequences of such use including any permissions or licenses required therefor should be available to the transferee; d. For the period during which the transferee has such legal right, it has to be the exclusion to the tran....