TaxTMI 
TaxTMI 
2022 (11) TMI 496
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....sue was with regard to the levy of VAT (Value Added Tax) on the lease charges paid by the Railways Department to the Petitioner Company. The levy of tax was under Section 2(s)(vi) of the VAT Act for the assessment year 2009-10. The assessment for the year 2009-10 was completed on 22.12.2014. In the course of assessment, the Assessing Officer assessed an amount of Rs.29,20,347/- as lease rent obtained by the Assessee from the Railways Department under Section 2(s)(vi) of the VAT Act. According to the Assessing Officer, the said transaction amounted to deemed sale and accordingly the tax was assessed on the above mentioned amount at the rate of 18% which came to around Rs.4,08,849/-. It was this assessment which was under challenge in the aforesaid W.P.(T) No.128/2015. However, vide Order dated 5.12.2017 the said Writ Petition got dismissed, which led to the filing of the present Review Petition. 4. The present Review Petition has been filed seeking for recalling of the Order dated 5.12.2017 as the said decision of this Court was said to be clearly contrary to the legal principles settled by the Hon'ble Supreme Court in the case of "20th Century Finance Corpn. Ltd. & Anr. Vs. ....
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....e of any review available for the Petitioner Company to approach this Court again. According to learned State Counsel, there is no error apparent on the face of record and since there is no error apparent on the face of record, the grounds raised by the Petitioner Company in the instant Review Petition would not be sustainable and the Review Petition accordingly deserves to be dismissed. 8. The definition of "tax on the sale or purchase of goods" is provided under clause (d) of Section 29A of Article 366 of the Constitution of India, which reads as under:- "(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;" 9. The VAT Act is an enactment under the State Legislature under Entry 54 of List-II of Schedule 7 of the Constitution of India, which for ready reference is being reproduced herein below:- "54. Taxes on the sale of petroleum crude, high speed diesel, motor spirit (commonly known as petrol), natural gas, aviation turbine fuel and alcoholic liquor for human consumption, but not including sale in the course of inter-state trade or commer....
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.... of certain goods and a term of the contract is that the goods contracted to be sold will be actually delivered from the sellers godown to the buyers retail shop, both in the State of Delhi, for consumption in the State of Delhi. Pursuant to this contract made in Gurgaon in the State of Punjab, the buyer pays the full price of the goods at Gurgaon and the seller hands over to the buyer also at Gurgaon a delivery order addressed to the seller's godown-keeper in Delhi to deliver the goods to the buyers retail shop. As a direct result of this sale the sellers godown-keeper, on the presentation of this delivery order, actually delivers the goods to the buyers retail shop at Connaught Circus for consumption in the State of Delhi. On one view of the law, the situs of such a sale would be Gurgaon. We need not decide that it is, because that type of case is not before us and there may be other views to consider, but it is certainly a possible view. It is also possible to hold that this is not inter-State trade or commerce, because there is no movement of goods across a State boundary. Again, we need not decide that because that also may be controversial. But given the....
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....s tax on the transfer of the right to use goods. The various sub-clauses of clause (29A) of Article 366 permit the imposition of tax thus: sub-clause (a) on transfer of property in goods; sub-clause (b) on transfer of property in goods; sub-clause (c) on delivery of goods; sub-clause (d) on transfer of the right to use goods; sub-clause (e) on supply of goods; and sub-clause (f) on supply of services. The words and such transfer, delivery or supply. In the latter portion of clause (29A), therefore, refer to the words transfer, delivery and supply, as applicable, used in the various sub-clauses. Thus, the transfer of goods will be a deemed sale in the cases of subclauses (a) and (b), the delivery of goods will be a deemed sale in case of sub-clause (c), the supply of goods and services respectively will be deemed sales in the cases of sub- clauses (e) and (f) and the transfer of the right to use any goods will be a deemed sale in the case of sub-clause (d). Clause (29A) cannot, in our view, be read as implying that the tax under subclause (d) is to be imposed not on the transfer of the right to use goods but on the delivery of the goods for use. Nor, in our view, can a transfer of t....
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.... of the right to use goods it may be effected by the delivery of the goods. 35. As a result of the aforesaid discussion our conclusions are these: (a) The States in exercise of power under Entry 54 of List II read with Article 366 (29A) (d) are not competent to levy sales tax on the transfer of right to use goods, which is a deemed sale, if such sale takes place outside the State or is a sale in the course of inter-State trade or commerce or is a sale in the course of import or export. (b) The appropriate legislature by creating legal fiction can fix situs of sale. In the absence of any such legal fiction the situs of sale in case of the transaction of transfer of right to use any goods would be the place where the property in goods passes, i.e. where the written agreement transferring the right to use is executed. (c) Where the goods are available for the transfer of right to use the taxable event on the transfer of right to use any goods is on the transfer which results in right to use and the situs of sale would be the place where the contract is executed and not where the goods are located for use. (d) In cases where goods are not in....