As per case facts, the appellant supplied telecommunication equipment to M/s Spice Communications Ltd. on a two-year trial use basis, with an option to purchase. The tax authorities discovered these ...
VATAP-52 and 53 of 2015 (O&M) 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
1. VATAP-52 of 2015 (O&M)
Global Mobile Infrastructure Pvt. Ltd. ....Appellant
vs.
Union Territory, Chandigarh and anr. ...Respondents
2. VATAP-53 of 2015 (O&M)
Global Mobile Infrastructure Pvt. Ltd. ....Appellant
vs.
Union Territory, Chandigarh and anr. ...Respondents
Reserved on:- 18.02.2025
Pronounced on :-05.04.2025
CORAM: HON'BLE MR. JUSTICE ARUN PALLI
HON'BLE MRS. JUSTICE SUDEEPTI SHARMA
Present: Mr. Sandeep Goyal, Mr. Rishal Singla and
Ms. Alisha Chawla, Advocates, for the appellant (s).
Mr. Sumeet Jain, Addl. Standing counsel
for the respondents.
***
SUDEEPTI SHARMA, J.
1. The above mentioned two appeals have been preferred
against order (s) dated 26.09.2014 passed by the Value Added Tax
Tribunal Union Territory, Chandigarh (herein after to be referred as
“Tribunal”) in Appeal No. 90 of 2010 (VATAP No. 52-2015) for A.Y
2006-2007 and Appeal No. 91 of 2010 (VATAP No. 53-2015) for A.Y
VATAP-52 and 53 of 2015 (O&M) 2
2007-2008, whereby the appeals filed by the appellant against order
dated 08.10.2008, have been dismissed.
2. This judgment shall dispose of the above mentioned two
appeals together, as common questions of law and facts are involved
therein. However, for facility of reference, the facts are being taken
from VATAP-53-2015.
BRIEF FACTS OF THE CASE
3. The appellant-company is engaged in the sale of
distribution of telecommunication equipments for infrastructure
services to telecom companies in India. The appellant company had
purchased telecom equipment from M/s ZTE Corporation China, as per
agreement dated 21.11.2006. The equipments were bought on a total
credit basis for 24 months after which the payment was required to be
made in installments by the appellant-company to M/s ZTE
Corporation, China as per the agreement. Thereafter, the appellant
company entered into a further agreement with M/s Spice
Communications Ltd., on 20.12.2006 for supplying the equipments to
them on a two years trial use basis and also gave an option to M/s
Spice Communications Ltd to decide the purchase of said equipments
at the end of two years trial period.
4. The Assistant Excise and Taxation Commissioner cum
Designated Officer, U.T. Chandigarh, on the basis of inspection on the
business premises of M/s Global Mobile Infrastructure Pvt. Limited
190, Ramdarbar, Industrial Area, Phase II, Chandigarh, conducted by
VATAP-52 and 53 of 2015 (O&M) 3
the ETO-cum-Designated Officer, U.T. Chandigarh on 15.04.2008,
gave a notice under Section 30 of the Punjab Value Added Tax Act,
2005 read with Rule 39 of VAT Rules, 2005, after following due
process. The appellant-company filed reply to the same. The Assistant
Excise and Taxation Commissioner cum Designated Officer, U.T.
Chandigarh passed provisional assessment order under Section 30 of
Punjab Value Added Tax Act, 2005 and created demand of
Rs.6,38,49,835/- for the assessment year 2007-2008, vide order dated
8.10.2008 and it was found that Appellant-Company had delivered
goods to M/s Spice Communications Ltd., through delivery challans
for the period from 1.01.2007 to 31.03.2007, 1.04.2007 to 31.03.2008
and 1.04.2008 to 12.04.2008 to the tune of Rs.21,54,71,671/-,
Rs.1,45,70,14,348/- and Rs.3,88,10,763/- respectively. It was further
found that the transacation is not shown in the returns for the year
2007-2008 on account of sale of goods to M/s Spice Communications
Ltd.
5. The appellant-company then filed CWP No. 19404-2008
challenging the order dated 8.10.2008 and the same was dismissed as
withdrawn, vide order dated 9.12.2008 to avail alternative remedy.
6. Against the above order dated 8.10.2008, the appellant-
company filed appeal (s) before the Additional Excise and Taxation
Commissioner, Chandigarh, who dismissed the same vide order dated
28.01.2010 and the appellant-company was held liable to pay tax on
goods worth Rs.159,62,45,883 and further it was held by the Addl.
VATAP-52 and 53 of 2015 (O&M) 4
Excise and Taxation Commiossioner, Chandigarh that the appellant-
company failed to pay the tax while filing the returns with a view to
evade/avoid the payment.
7. The appellant-company then challenged the order dated
28.01.2010 before the learned Tribunal, who dismissed the appeal, vide
order dated 26.09.2014. Hence, the present appeals.
SUBMISSION OF LEARNED COUNSEL FOR THE PARTIES
8. Learned counsel for the appellant(s) contends that there is
no transfer of goods for any consideration, therefore, the same would
not amount to sale and could not be covered under the definition, as
defined under Section 2 (zf) of the Punjab Value Added Tax Act, 2005
(hereinafter to be referred as “Act, 2005”). He further contends that the
sale will be taxable for the year in which the goods are actually
transferred for consideration and for the period in question, there is no
such consideration and the advance received is also not sale.
9. Learned counsel for the appellant (s) further contends that
if the right to use goods is to be taxed, it is only rental value of the
goods, which can be taxed. Although, the appellant-company has not
received any rent, therefore, the entire value of the goods cannot be
taxed.
10. He has relied upon judgment of this Court in a case of GE
Captial Transportation Financial Services Ltd vs. State of Haryana
and anr., [2013] 63 VST 329 (P&H).
11. Per contra, learned counsel for the respondent contends
VATAP-52 and 53 of 2015 (O&M) 5
that the goods were delivered by the appellant-company to M/s Spice
Communications Pvt. Ltd. on trial basis for 24 months, which amounts
to complete sale and, thus covered under the definition, as defined
under Section 2(zf) (iv) of the Act, 2005.
12. He further contends that the amount of consideration is
also mentioned in the agreement and goods are not returned till date.
Further the price of goods is mentioned in the challans which are very
much on record. As per the challans, most of goods are consumable,
therefore, the price of goods would be sale price.
13. We have heard learned counsel for the parties and
perused the whole records of the case.
14. Before proceeding further, it would be appropriate to
reproduce the relevant porition of the impugned order dated
26.09.2014 of the learned Tribunal:-
“6. After hearing the parties and going through the record, I
find that the appellant company M/s Global Mobile
Infrastructure Pvt. Limited had been making sales of telecom
equipment to M/s Spice Communication Ltd. ostensibly on trial
basis. The appellant-company had transferred goods worth Rs.
21,54,71,671 during the period January - March 2007 and
worth Rs. 1,45,70,14,348/- during the year 2007-08. The above
mentioned sales had not been shown in the VAT returns filed by
the appellant before the Excise and Taxation Department. The
Assistant Excise and Taxation Commissioner has after due
VATAP-52 and 53 of 2015 (O&M) 6
process created a demand of tax amounting to Rs. 6,38,49,835/-
for the period 2007-08. The appellant has raised two questions
before this court; first, that the goods transferred on the basis of
trial for two years as per agreement between the parties M/s
Global Mobile Infrastructure Pvt. Ltd. and M/s Spice
Communications Ltd, do not come within the definition of sale;
and second: sale, if any, will take place after two years subject
to approval/acceptance of transferred goods by M/s Spice
Communications Ltd. In this regard, the Ld. Counsel for the
appellant has submitted three agreements: first one between
Spice Mobile Pvt. Ltd. and ZTE Corporation, China dated
21.11.2006, the second one, executed between Spice Mobile Pvt.
Ltd. and Spice Communications Private Limited on 22.12.2006;
and third one, executed between Global Mobile Infrastructure
Pvt. Ltd. and Spice Communications Private Limited on
12.6.2007. After perusing the agreements executed between the
parties it is found that all these agreements are unregistered
documents. The liability to pay VAT for transactions that
constitute 'Sale' cannot be obliterated by entering into private
agreement between the parties that tend to negate a transaction
that otherwise qualifies as a 'Sale'. The appellant company is
governed by the VAT provisions applicable to UT, Chandigarh
which nowhere provide for transaction in the nature of "sale on
VATAP-52 and 53 of 2015 (O&M) 7
trial basis for a period of two years or more". The definition of
sale has been given in Section 2 (zf) which is reproduced below:
2(zf) "Sale" with all its grammatical or cognate
expressions means any transfer of property in goods for
cash, deferred payment or other valuable consideration
and includes:-
iv) 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.
A perusal of above mentioned Section and the transfer of
goods that has taken place makes it clear that the goods
transferred by the appellant company are covered under the
definition of 'Sale'. I also find that the appellant transferred
goods through delivery challan which contains the value of the
transferred goods. It is also seen that two years period has
already passed after the transfer of goods. During the course of
the arguments, the Ld. Counsel was asked whether the goods
transferred on trial basis for two years have been received back
but he failed to give the answer in the affirmative. Nor any such
documentation has been shown to this court or to the authorities
below. It is clear that the goods transferred had already been
consumed. The delivery of these goods by the appellant
VATAP-52 and 53 of 2015 (O&M) 8
Company to M/s Spice Communications Ltd. thus necessarily
constitutes a sale. In view of all the facts on record and after
taking into account submissions made by both the sides, it is
held that the appellant had tried to evade tax and deliberately
had not shown the value of goods in the VAT returns filed before
the Department to avoid tax. Therefore, I see no merit in the
present appeal and dismiss the same being devoid of merits.”
15 Undisputedly, the appellant-Company entered into three
similar agreements on 21.11.2006, 12.06.2007 and 16.07.2007 with
M/s ZTE Corporation, China for supply of telecommunications
equipments subject to approval by the end-user i.e Telecom Company.
16. The appellant-company further entered into agreements
with M/s Spice Communications Pvt. Ltd. on 20.12.2006 and
16.07.2007 for further supply of the goods received from M/s ZTE
Corporation, China on trial use basis subject to final approval after the
equipment satisfies the technical requirements.
17. The dispute in the present case is as to whether the goods
supplied by the appellant-company on trial basis to M/s Spice
Communications Pvt. Ltd, amounts to sale or not.
18. The relevant portion of the agreement dated 20.12.2006
between Spice Mobile Pvt. Ltd and Spice Communications Pvt. Ltd
reads as under:-
“Spice Mobile has agreed to on supply the equipment to
VATAP-52 and 53 of 2015 (O&M) 9
Spicecom on a 2 year trial use basis. Spicecom may at its option
decide to purchase the said equipment at the end of the 2 year
trial use provided that the equipment achieves the key
performance indicators in accordance with the terms and
conditions thereof.
Now therefore, based on mutual covenants mentioned
above, both parties mutually agree to enter into this agreement
based on the followings terms and conditions.”
xxxx xxxx xxxx
Article 2 Scope of Agreement
2.Spice Mobile shall provide on trial basis for a period of
24 months from the date of each supply, to Spicecom the listed
Equipment in the Bill of Quantities (BOQ) under the conditions
and terms of this Agreement. In the event of Spice Mobile
supplying the Equipments and Services in accordance with this
Agreement and meeting the Key Performance Indicators during
the said respective trial period of 24 months from the date of
each supply, Spicecom may decide to purchase each of the
respective Equipments by accepting each such Equipments,
failing which Spicecom shall return each of such Equipments on
as is where is basis at the end of the respective trial period of 24
months from the date of each supply. Spice Mobile or any
Suppler designated by Spice Mobile in this behalf, shall provide
VATAP-52 and 53 of 2015 (O&M) 10
the Equipments and the Services in accordance with this Article
2 read with Annexures A to D1 attached to this Agreement as
follows:-
ANNEXURE A: Priced BOQ:
ANNEXURE B: Technical Specifications;
ANNEXURE B1: Planning Guidelines;
ANNEXURE B2: Network KRI Measures:
ANNEXURE C: Scope of Supply
ANNEXURE C1: Scope of Work (Swap Sites)
ANNEXURE C2: Responsibility Matrix
ANNEXURE C3: Scope of Service
ANNEXURE D: BSS-TCT
ANNEXURE D1: NSS-TCT
XXX xxx xxxx
Article 5: PRICE OF THE AGREEMENT
The total price of this Agreement is Indian rupees equivalent to
US$ 39.5 million (US dollar Thirty Nine point Five Million only)
as all inclusive price under this Agreement as set out in Priced
BOQ: However taxes and duties as may be applicable at the time
of raising of Invoice by Spice Mobile (after completion of 24
months trial period and KPIs having been met), shall be charged
extra.
ARTICLE 6: TERMS OF PAYMENT
VATAP-52 and 53 of 2015 (O&M) 11
Payment Schedule Subject to Article 2.1 of Part I and Article 8
of Part-II, the payment will be made in accordance with Clause
6.1 hereof
6.1 Payment for Equipment Price
(a) Interest free Security Deposit equivalent to Twenty
Five percent (25%) of the priced BOQ on demand shall be paid
to Spice Mobile within fifteen (15) Days from the date of receipt
of such demand. In the event of Spicecom accepting the
Equipment at the end of 24 months trial period from the date of
each supply, the interest free Security Deposit will be treated by
the parties as payment towards the Equipment Price upon
receipt of Invoice from Spice Mobile.
(b) the balance Payment of the price, net of adjustments as
seliout in the respective invoice shall be paid as follows: Four
quarterly payments of equal value through Escrow Account at
the end of the said 24 months trial period from the date of each
supply with equal value during the third year, namely
i) 1
st
payment of Eighteen point Seventy Five percent
(18.75%) of the price set out in the Invoice in the 27th
month from the date of each supply.
ii) 2
nd
payment of Eighteen point Seventy Five percent
(18.75%) of the price set out in the Invoice in the 30th
month from the date of each supply.
VATAP-52 and 53 of 2015 (O&M) 12
iii) 3
rd
payment of Eighteen point Seventy Five percent
(18.75%) of the price set out in the Invoice in the 33rd
month from the date of each supply; and
iv) 4th payment of Eighteen point Seventy Five
percent (18.75%) of the price set out in the Invoice in
the 36th month from the date of each supply.
However, Spicecom at its discretion may also pre-pay,
ahead of schedule, the entire/partial amount any time after 24
months period from the date of each supply.
However, in the event of non-compliance of Article 8 of
Part-II or in the event Spicecom not accepting any such
Equipment (s), Spice Mobile shall forthwith and not later than
15 days refund the Security Deposit amount received from
Spicecom under this Article 6.1 (a).
6.2.1 The said payment shall be made wholly in equivalent Indian
Rupees to the United States Dollars or any other currency mutually
agreed.”
19. A perusal of the above referred to agreement shows that
the requirement as per Article 2 is that the trial period is for 24 months
and Spice Com may decide to purchase each of the respective
equipments by accepting each such equipments, failing which Spice
Com shall return each of such Equipments on “as is where is” basis at
the end of the respective trial period of 24 months from the date of
VATAP-52 and 53 of 2015 (O&M) 13
each supply.
20. Further Article 8 as referred to above specifically states
that the Spice Mobile shall despatch the equipments within 15 days
after receipt of security deposit from Spice Com as specified in Article
6.1 (
Payment for Equipment Price) of the agreement.
21. The delivery challan in the remark column shows that the
material is being sent on trial basis.
22. A perusal of the agreement between the appellant-
Company and Spice Communications Pvt. Ltd. shows that the goods
were transferred/supplied on trial use basis for a period of 24 months.
It is specifically mentioned in the agreement that if the Spice
Communications does not decide to purchase each of the respective
equipments by accepting each, it shall return each of such equipment.
Further, if the Spice Communications Pvt. Ltd. does not intend to
purchase the equipments at the end of 2 year trial period, it shall return
each of such equipment.
23. Undisputedly, in the present case, the goods are not
returned till date.
24. It would be relevant to reproduce definition of sale, as
defined under Section 2(zf) of Act, 2005:-
(zf) “sale” with all its grammatical or cognate expressions means
any transfer of property in goods for cash, deferred payment or
other valuable consideration and includes -
(i) transfer, otherwise than in pursuance of a contract, of property
VATAP-52 and 53 of 2015 (O&M) 14
in any goods for cash, deferred payment or other valuable
consideration;
(ii) transfer of property in goods (whether as goods or in some
other form) involved in the execution of a works contract;
(iii) delivery of goods on hire-purchase or any system of payment
by instalments;
(iv) 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;
(v) supply of goods by any unincorporated association or body of
persons to a member thereof for cash, deferred payment or other
valuable consideration;
(vi) 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 consumption or any drink (whether or not intoxicating)
where such supply or service is for cash, deferred payment or other
valuable consideration; and
(vii) every disposal of goods referred to in Explanation (4) to clause
(t) of this section;
and such transfer, delivery or supply of any goods shall be deemed
to be a sale of these goods by the person making the transfer,
delivery or supply to a person to whom such transfer, delivery or
supply is made, but does not include a mortgage, hypothecation,
charge or pledge.”
VATAP-52 and 53 of 2015 (O&M) 15
25. A perusal of the above referred to definition of sale shows that it
includes transfer of right to use of any goods for any purpose (whether or not
for specified period) for cash, deferred payment or other valuable
consideration.
26. In the present case, the goods were supplied by the appellant-
company to Spice Communications Pvt. Ltd. on trial basis for a period of 24
months with an option to decide to purchase the goods (equipments) at the end
of two years trial period.
27. Further that the
Spicecom shall return each of such Equipments
on “as is where is basis” at the end of the respective trial period of 24
months from the date of each supply.
28. Further Article 6 of the agreement is terms of the payment
which states about the security deposits and the payment to be made in
installments.
29. Now coming to GE Captial Transportation Financial Services
Ltd’s case (supra), referred to by learned counsel for the petitioner. The
relevant portion of the judgment reads as under:-
“1 xxx xxx xxx
“2.After hearing the learned counsel for the parties, we find
that the following substantial question of law arises for
consideration:-
“Whether in the facts and circumstances of the present
case, the Haryana Tax Tribunal, Chandigarh has
correctly passed an order that the lease rentals for the
entire lease period is a sale price when the appellant
delivered the goods, therefore, the lease amount received
VATAP-52 and 53 of 2015 (O&M) 16
or receivable would be quantified as turnover?
7. In terms of Article 366 (29A)(d) of the Constitution, sale includes
sale and purchase of goods including the transfer of the right to use
in goods for any purpose whether or not for a specific period for
cash, deferred payment or other valuable consideration. The
“sale”, as defined under the Act is in tune with the said provisions
in the Constitution. In terms of the provisions of the Constitution
and the Act, sale and purchase of the goods by fiction of law would
include right to transfer of goods in respect of any lending
transaction. Thus the transaction of lease is a deemed sale, but
whether the gross turnover is to be quantified in respect of the lease
rentals received or receivable during the year or the entire lease
rentals to be received during the entire period of lease would form
part of gross turnover of the year is the question requires to be
examined.
8. The Hon'ble supreme Court in 20th Century Finance Corporation
Ltd.'s case [2000] 119 STC 182 (SC), has held to the following
effect:-
"(26) Next question that arises for consideration is where is the
taxable event on the transfer of the right to use any goods. Article
366(29A)(d) empowers the State legislature to enact law imposing
sales 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
VATAP-52 and 53 of 2015 (O&M) 17
sub-clauses (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 sub-clause (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 the
right to use goods in sub-clause (d) of clause (29A) be equated with
the third sort of ‘bailment’ referred to in Bailment by Palmer, 1979
edition, page 88. The third sort referred to there is when goods are
left with the bailee to be used by him for hire, which implies the
transfer of the goods to the bailee. In the case of sub-clause (d), the
goods are not required to be left with the transferee. All that is
required is that there is a transfer of the right to use the goods. In
our view, therefore, on a plain construction of sub- clause (d) of
Clause (29A), the taxable event is the transfer of the right to use the
goods regardless of when or whether the goods are delivered for
use. What is required is that the goods should be in existence so that
they may be used. And further contract in respect thereof is also
required to be executed. Given that, the locus of the deemed sale is
the place where the right to use the goods is transferred. Where the
goods are when the right to use them is transferred is of no
relevance to the locus of the deemed sale. Also of no relevance to
the deemed sale is where the goods are delivered for use pursuant to
the transfer of the right to use them, though it may be that in the
case of an oral or implied transfer of the right to use goods, it is
effected by the delivery of the goods.
(27) Article 366(29A)(d) further shows that levy of tax is not on use
of goods but on the transfer of the right to use goods. The right to
use goods accrues only on account of the transfer of right. In other
VATAP-52 and 53 of 2015 (O&M) 18
words, right to use arises only on the transfer of such a right and
unless there is transfer of right, the right to use does not arise.
Therefore, it is the transfer which is sine qua non for the right to use
any goods. If the goods are available, the transfer of the right to use
takes place when the contract in respect thereof is executed. As soon
as the contract is executed, the right is vested in the lessee. Thus, the
situs of taxable event of such a tax would be the transfer which
legally transfers the right to use goods. In other words, if the goods
are available irrespective of the fact where the goods are located
and a written contract is entered into between the parties, the
taxable event on such a deemed sale would be the execution of the
contract for the transfer of right to use goods. But in case of an oral
or implied transfer of the right to use goods it may be effected by the
delivery of the goods."
9. As per Section 2(ze) (iv) of the Act, “sale” means a transfer of
property in goods when the transfer of the right to use any goods for
any purpose is made. Therefore, the transfer of the vehicle on
rentals is a sale falling within Section 2(ze) of the Act as held by the
Hon'ble Supreme Court in 20th Century Finance Corporation Ltd.'s
case (supra). The explanations appended to Section 2(zg) of the Act,
does not deal with the sale price falling in clause (iv) of Section
2(ze). Explanation (i) appended to Section 2(zg) deals with the
transfer of property in goods involved in the execution of the works
contract whereas explanation (ii) deals with the delivery of goods
on hire purchase. The taxable turnover in terms of Section 2(zn) of
the Act is to be computed in terms of Section 6 of the Act. Section 6
of the Act permits the deductions, which are to be made from the
gross turn over, but right to transfer goods for the purpose of use
does not find mention in any of the provisions of Section 6 of the
Act.
10. Faced with such a situation, the definition of tax period and
VATAP-52 and 53 of 2015 (O&M) 19
turnover as defined in Haryana Value Added Rules, 2003 (for short
`the Rules') becomes relevant. The tax period in terms of Rule 2(zf)
of the Rules means a period of time usually a month, a quarter or a
year for which tax payable by a dealer is quantified. In the present
case, the return filed by dealer is on yearly basis. The turnover is
aggregate of the goods sold or purchased by a dealer during a tax
period in terms of Rule 2 (zg) of the Rules. Since the transfer of the
right of use in the vehicle is the sale falling within the definition of
Section 2(zf), therefore, the rentals received or receivable during
the tax period is the sale price received by the dealer, exigible to tax
in a Financial Year. The right to use vehicle is dependent upon the
monthly payment of rentals and therefore, the monthly rentals
received or receivable by the dealer is a turnover and consequently
the sale price.
11. In view of the said fact, we find that the orders passed by the
Authorities under the Act are not sustainable. The lease rental
received or receivable during the tax period only, as a right to use
goods, is the turnover forming part of sale price.”
30. A perusal of the above referred to judgment shows that the facts
of the same are distinguishable from the facts of the present case since the
substantial question of law in the above referred to judgment reads as under:-
“Whether in the facts and circumstances of the present
case, the Haryana Tax Tribunal, Chandigarh has
correctly passed an order that the lease rentals for the
entire lease period is a sale price when the appellant
delivered the goods, therefore, the lease amount received
or receivable would be quantified as turnover?
31. Further in the above referred to judgment, the appellant-
VATAP-52 and 53 of 2015 (O&M) 20
company entered into agreement for lease of vehicles whereas in the
present case, the goods were delivered to use for a period of 24 months,
which was trial period, on the terms of the payment as mentioned in Article
6 of the agreement at the end of said 24 months trial period, if equipments
are acceptable to M/s Spice Communications Pvt. Ltd. Further Article 6 of
the agreement refers to the terms of the payment and installments after a
period of 24 months, which amounts to deferred payment, as per the
definition of sale referred to above.
32. Since the admitted fact of the appellant-company is that the
equipments are not returned till today, therefore, as per agreement between
the appellant-company and M/s Spice Communications Pvt. Ltd, after 24
months from the date of agreement, till date, the equipments were
consumed by M/s Spice Communications Pvt. Ltd. and never returned,
which as per agreement would amount to sale.
33. A bare perusal of the agreement as well as definition of sale
shows that since the delivery of goods in the present case is on trial basis
and deferred payment as per Article 6 (Terms of Payment), therefore, the
learned Tribunal has rightly held that delivery of the goods by the
Appellant-Company to M/s Spice Communications Pvt. Ltd. constitute a
sale.
34. In view of the above, we do not find any infirmity in the
impugned orders
dated 26.09.2014 passed by the learned Tribunal in “Appeal
No. 90 of 2010 (VATAP No. 52-2015) for A.Y 2006-2007 and Appeal No. 91
of 2010 (VATAP No. 53-2015) for A.Y 2007-2008”. The same are upheld.
VATAP-52 and 53 of 2015 (O&M) 21
35. Accordingly, the appeals are dismissed.
36. All the pending application (s), if any, also stand disposed of.
(ARUN PALLI) (SUDEEPTI SHARMA)
JUDGE JUDGE
05.04.2025
Gaurav Arora
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
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