TaxTMI 
TaxTMI 
2022 (12) TMI 1139
X X X X Extracts X X X X
X X X X Extracts X X X X
....03.2021 (Annexures-4 & 5 respectively supra); (ii) Issue Rule, calling upon the respondents and each one of them, to show cause as to why a Writ of Mandamus and/or in the nature thereof, shall not be issued, mandating/commending them, to forthwith revoke/rescind the impugned Order of Assessment dated 31.03.2021 & the impugned Demand Notices, each dated 31.03.2021 (Annexures-4 & 5 respectively supra), and thereupon, relieve the petitioner from taxable liability; (iii) Issue Rule, calling upon the respondents and each one of them, to show cause as to why a Writ of Prohibition and/or in the nature thereof, shall not be issued, for restraining/prohibiting the respondents, from acting in any manner, in furtherance of the impugned Order of Assessment dated 31.03.2021 & the impugned Demand Notices, each dated 31.03.2021 (Annexures-4 & 5 respectively supra); (iv) In the Ad-interim, and thereafter, on hearing the parties, in the Interim, an Order, in terms of Prayer (iii) supra; (v) Call for the records, appertaining to this writ petition; (vi) After hearing the parties, be pleased to make the Rule absolute in terms of (i) to (ii) above; ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....by Ms. N. Gupta, learned counsel appearing for the petitioner as well as Mr. K. De, learned Addl. G.A. appearing for the State-respondents. 4. Mr. Somik Deb, learned senior counsel at the outset submits that the respective Work Orders as well as the agreement would reveal that there was 'no transfer of right to use goods' by the petitioner as in case of a written contract, constituting a transfer of used goods, the situs of sale would be the place where the property in goods passes, i.e. where the written agreement, transferring the right to use is executed. Mr. Deb, learned Sr. counsel also contends that in the instant case, the written agreements were executed in Guwahati, Assam, and therefore, the situs of the sale would be at Guwahati, Assam and hence, the taxing authorities in Tripura would have no jurisdiction whatsoever, to levy any tax, in connection with such agreement. 4.1 Mr. Deb, learned sr. counsel in support of his submission, has placed reliance on the following case laws: (i) Indian Oil Corporation Ltd. Vrs. Commissioner of Taxes, Assam & Ors., [2009] 22 VST 70 (Gauhati); (ii) Commissioner, VAT, Trade and Taxes Department Vrs. International T....
X X X X Extracts X X X X
X X X X Extracts X X X X
....f the transaction in question contains both the components of a sale of goods and services also, whether such a transaction can only be taxed as a service or can also be taxed as a sale of goods. The related aspect which will also come in, is, if the contract is not severable as per the intention of the parties because separate values have not been fixed for the purposes of sale of goods and for sale of services; whether such a non-severable contract can be split up for taxing the sale of goods or even if it is not split up can the whole value of the contract be taken as the value of the sale of goods." 4.4 In the aforesaid judgment, the Division Bench also at Para 9 (ii) held that- "9.(ii) Except the specific contracts so provided under Article 366(29-A) no other contracts can be artificially severed to tax the sale element with respect to goods as comprised in such composite contracts. Therefore, where the contracts are composite contracts, including therein both aspects of sale of goods and services, such contracts which are other than those specified in Article 366(29-A) (b) and (f), then such other contracts not falling within such subclauses of Article 366(29-A) c....
X X X X Extracts X X X X
X X X X Extracts X X X X
....at this is concomitant to the licence to use the goods. The another condition that has been laid down is that having transferred the right to use the goods period for which it is to be transferred, the owner cannot again transfer the same rights to others. It would thus be seen that unless all the requirements are transferred, the transaction will not come within the meaning of "Transfer of the rights to use any goods". 5. At this juncture, we may now, refer Section 4 of the Tripura Value Added Tax Act, 2004 (for short, the Act, 2004) which reads thus: 4. Tax on deemed sales. - (1) Notwithstanding anything contained elsewhere in this Act, any transfer of property in goods (whether as goods or in some other form) involved in the execution of a works contract shall be deemed to be a sale of those goods by the person making the transfer and shall liable to be taxed at the rate specified in the Schedule: Provided that in respect of any such transfer, only so much value of the goods involved in the works contract which has actually been paid to the dealer during the period, shall be taken into account for determining the turnover for the period. Explanation....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... (i) a person engaged in the business of transfer of property in goods (whether as goods or in some other form) involved in the execution of a works contract; (j) a person engaged in the business of delivery of goods on hire purchase or any other system of payment by instalments; (k) a person engaged in the business of transfer of the right to use any goods for any purpose (whether or not for a specified period) for cash, deferred payment or commission or remuneration or any other valuable consideration; (l) a department of the Central Government or any State Government or a Local Authority by name of any Panchayat, Municipality, Development Authority, Cantonment Board or any autonomous or statutory body including a Port Trust and the like, which, whether or not in the course of business, buys, sells, supplies or distributes goods, directly or otherwise, for cash, or for deferred payment, or for commission, remuneration, or other valuable consideration; (m) a Hindu Undivided Family or any other system of joint family which carries on business." 7. Sub-section (25) of Section 2 defines the word "Sale" which reads thus- "(25) [(i)] ....