TaxTMI 
TaxTMI 
2022 (5) TMI 1190
X X X X Extracts X X X X
X X X X Extracts X X X X
....ee for letting out on lease its aircraft would amount to sales and the amenable to the sales tax under the Orissa Sales Tax Act, 1947 ('OST Act'). 3. While admitting the revision petition on 15th May 2008, the following questions were framed for consideration by this Court: "1) Whether under the facts and circumstances of the case the Division Bench of the Tribunal having not disputed the finding of the facts reached by the Assistant Commissioner is correct in law in holding that the receipts for rendering Air Transport Services will come under the definition of "Sale" as provided U/s 2 (g) (iv) of the O.S.T. Act? 2) Whether under the facts and circumstances of the case the Division Bench of the Tribunal is correct in law in distinguishing the order or the Full Bench of the Tribunal on the same set of facts and circumstances without assigning any reason?" 4. This Court has heard the submissions of Mr. Satyajit Mishra, learned counsel appearing for the Petitioner and Mr. Sidharth Shankar Padhy, learned Additional Standing Counsel for the Department. 5. The actual transaction involves the Petitioner offering Air Transport Services to the Central Government Agencies and some co....
X X X X Extracts X X X X
X X X X Extracts X X X X
....hat there is a Full Bench decision of the Tribunal rendered on 31st December, 1999 in the Assessee's own case where it was held that the charges received by the Assessee from those hiring the services of the aircrafts did not amount to a sale under Section-2(g)(iv) of the OST Act. 11. However, the Tribunal has in the impugned order sought to distinguish the above judgment of its Full Bench by relying on the decision of the Supreme Court of India in 20th Century Finance Corporation Ltd. v. State of Maharashtra (2000) 119 STC 182 (SC). The Tribunal has in the impugned order held that the since the Full Bench of the Tribunal when it decided the issue on 31st December 1999, did not have the benefit of the above judgment of the Supreme Court in 20th Century Finance Corporation Ltd. (supra) it decided the issue in favour of the Assessee. 12. Mr. Mishra, learned counsel appearing for the Petitioner points out that the issue decided in 20th Century Finance Corporation Ltd. was mainly regarding the situs of sale and not whether the transaction of lease of aircraft or other machinery would be a deemed sale. He referred to the subsequent decision of the Supreme Court of India in Bharat Sanc....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... occasion to consider a transaction of the present nature, viz., offering air taxi services by collecting charges. Secondly, the Supreme Court was not dealing with a situation where there was no actual delivery of possession of the goods or article as in this case, where there is no transfer of the possession of the aircraft to the temporary user of such aircraft. 16. The above decision in 20th Century Finance Corporation has been further explained by the Supreme Court in Bharat Sanchar Nigam Limited vs. Union of India (supra). There the question considered was whether the transaction involved in providing mobile phone connections was amenable to sales tax? Answering that question in the negative, the Supreme Court explained the decision of this Constitution Bench in 20th Century Finance Corporation Ltd. as under: "73. 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 determin....
X X X X Extracts X X X X
X X X X Extracts X X X X
....cting the transfer of the right to use the goods but the goods must be available at the time of transfer must be deliverable and delivered at some stage. It is assumed, at the time of execution of any agreement to transfer the right to use, that the goods are available and deliverable. If the goods, or 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." 17. In the concurring opinion in the same decision, i.e. Bharat Sanchar Nigam Limited vs. Union of India (supra) it was explained by A.R. Lakshmanan, J. as under: "96. 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 therefore should be available to the transferee; d. For the period during which the transferee has such legal right, it has t....