M/S. Srei International Finance Ltd v. State Of Orissa And Others Opposite Parties.

A.K Ganguly, C.J:— This batch of Writ Petitions were heard together as common questions of facts and law are involved and these different Writ Petitions were filed in respect of different assessment years by the Petitioner.

2. The Petitioner claims to be a non-Banking Finance Company licensed by the Reserve Bank of India to carry on business in leasing as well as hire purchase, inter alia, of plant, machinery and other equipments. On or about. 31st July, 1995 a tripartite agreement was entered between the Petitioner company, and M/s. Indian Metals and Ferro Alloys Limited (IMFA) and M/s, Isgee John Thompson (‘IJT’). Under the said agreement IMFA was referred to as the ‘user’, IJT was referred to as ‘supplier I contractor’ and the Petitioner as the ‘purchaser’.

4. IMFA wanted to instal a 90 Ton Per Hour (TPH) Spreader Stoker Water Tube Boiler at its Choudwar Power Plant of M/s. Indian Charge Chrome Ltd. (ICCL), which is a sister concern of IMFA. For installation IMFA negotiated with IJT for designing, supplying, erecting and commissioning the said 90 TPH plant at its Choudwar Power Plant. After the terms and condition for designing the said plant between IMFA and IJT were settled, the user, i.e IMFA approached the Petitioner company for the purpose of erection and installation of the said plant and then to lease it out to IMFA. The said lease is a bipartite contract between IMFA and the Petitioner. Lease rent was agreed at Rs. 23 lakhs per year.

5. Both the agreements, namely, the tripartite agreement and the lease agreement were executed in Calcutta on 31st July, 1995. Pursuant to those two agreements dated 31st July, 1995, IJT fabricated and supplied the said boiler and delivered it to the IMFA plant at Choudwar in Orissa where it was installed and commissioned by IJT. Thereafter lease rental was paid by IMFA to the Petitioner.

6. The Sales Tax Officer, Cuttack-II Circle, Cuttack (hereinafter called as “the assessing officer”) passed assessment orders demanding sales tax on the amount of lease rental paid by IMFA to the Petitioner on the ground that the said boiler is located in Orissa and was delivered in Orissa and was being used in Orissa. For the purpose of levying tax on the lease rental against the Nil return filed by the Petitioner, the assessing officer placed reliance on the Explanation to Section 2(g)(iv)(a)(i) of the Orissa Sales Tax Act, 1947 (hereinafter, ‘OST Act’) which stipulates that the sale or purchase of goods shall be deemed to take place inside the State if the goods are within the State at the relevant time.

7. Before the assessing officer the Petitioner contended that the lease rentals were not exigible to Orissa Sales Tax as the lease rental was payable on account of an inter-state lease agreement and for which it disclosed the gross turnover under the OST Act as nil. In support of its contention the Petitioner relied on the Judgment of the Hon'ble Supreme Court in the case of 20th Century Finance Corporation Ltd. v. State of Maharashtra, 119 STC 182. The Petition further contended before the assessing officer that in terms of its lease agreement, payment of lease rental will arise only after erection and commissioning of boiler plant, that is only after the plant is embedded to the earth. This being a lease of immovable property, the transaction is not exigible to OST Act. The further contention was that since the agreement of lease was signed in the State of West Bengal, the assessing officer in Orissa has no jurisdiction to tax the lease rental. As the assessing officer levied Orissa Sales Tax on lease rental, disregarding the Petitioner's contentions, these Writ Petitions have been filed challenging the assessment orders of different assessment years.

8. Learned Counsel appearing for the Petitioner submitted before this Court that, the present lease is in the course of inter-state trade, since it was pursuant to a lease agreement dated 31.7.1995 that the goods in question, moved from Haryana to Orissa, where they were installed in IMFA's factory. According to the Learned Counsel, such an inter-state lease can be subjected to tax only under the provisions of Central Sales Tax Act and that too only with effect from 2002 since when “leases” were deemed to be sales under the CST Act. However this inter-state lease cannot be subjected to tax by the State of Orissa under the provisions of OST Act. It was further submitted that in the case of inter-state lease, the place where the transfer of right to use is effected or where the property passes is immaterial. Even if for some reason it is found that the transfer of the right to use or the transfer of property has taken place within the State of Orissa, even then, the State would have no jurisdiction or authority of law to levy tax under OST Act on such an inter-State lease.

9. It was argued in the alternative, that if this Court, for some reason, lipids that the lease in the present case has not been effected in the course of inter-State trade, then also, the State of Orissa has no jurisdiction to levy tax on the lease rental, since, admittedly the transfer of right to use goods has been effected by the agreement executed in Calcutta i.e outside the State of Orissa. In support of his above contentions, Learned Counsel relied on the Judgment of Hon'ble Andhra Pradesh High Court in the case of ITC Classic. Finance and Services v. Commissioner of Commercial Taxes, reported in 97 STC 330.

10. According to the Learned Counsel, the facts in ITC Classic (supra) almost resemble the facts of the present case and the Hon'ble Andhra Pradesh High Court, held that the lease transactions in question were clearly inter-State in nature as the movement of goods from Madras to Hyderabad was occasioned by a contract. It was also held that it was immaterial in which State the property of the goods passed. The Learned Counsel further submitted that Section 5-E of the Andhra Pradesh General Sales Tax Act contains Explanation-II, which is similarly worded with the Explanation to Section 2(g) of the OST Act. The said explanation also deemed a sale to take place within the State if the goods were within the State at the time the contract of sale is made. In ITC Classic, it was held that it was not open to the State Legislature to frame its law so as to convert an outside sale or sale in course of inter-state trade into a sale which was deemed to take place within the State.

11. The Constitution Bench of the Hon'ble Supreme Court upheld and confirmed the said decision in ITC Classic's case (supra) and dismissed the appeal filed by the State of Andhra Pradesh. It was further submitted that two Judgments i.e the Judgment of the Division Bench of the Hon'ble Andhra Pradesh High Court in ITC Classic case (supra) and the Judgment of the Constitution Bench of the Hon'ble Supreme Court in the case of 20th Century Finance Corporation's case (supra) squarely cover the case of the Petitioner. The Learned Counsel urged that the transaction in question has taken place, long before the amendment to the Central Sales Tax Act in 2002 and the amendment is prospective effect and has no retrospective effect. A transaction, prior to 2002 cannot in any event be subjected to tax by any State Government, be it Haryana or the West Bengal or the State of Orissa.

12. In support of this contention, Learned Counsel relied on the Judgment of this Hon'ble Court in the case of Sundarm Finance Ltd., reported in 125 STC 565. The further case of the Petitioner is that, merely because, the boiler supplied by IJT was installed, erected and commissioned before lease rental commenced that cannot lead to the conclusion that the lease was not a inter-State lease. This is because the boiler which was transported from Haryana to Orissa pursuant to the lease agreement was the same boiler which was installed, erected and commissioned in IMFA's plant at Choudwar. It is also argued that if the said erected and commissioned boiler is regarded as immovable property, then, no tax under Section 2(g) of the OST Act can be charged on the lease rentals, because tax can only be charged on the transfer of right to the use of goods and not in respect of lease of immovable property. The constitutional validity of explanation to Section 2(g) of the OST Act has also been challenged by the Petitioner on the ground that the provision of Article 286 of the Constitution and, Sections 3, 4 and 5 of the Central Sales Tax Act and Entry-92A of List II of VII Schedule of the Constitution of India has overriding effect on the OST Act of the State and no local tax can be imposed on a sale in course of import or export or sale taking place outside the State or in course of inter-state trade.

13. The Learned Counsel for the Revenue, on the other hand, argued that in order to escape from the liability to pay tax on the transfer of right to use the goods (90 TPH) at Choudwar for which monthly rentals are received by the Petitioner from IMFA (ICCL), the Petitioner is trying to make out a case that the transaction was an inter-state lease. It was contended that there is no basis for the Petitioner to urge that no State including the State of West Bengal, where the agreement to transfer the right to use was executed, had any jurisdiction to levy tax on lease rentals since the interstate lease was executed prior to 2002, when Section 2(g) of the OST Act was amended.

14. It is further submitted that since the alternative remedy by way of filing an appeal from the assessment order before the Appellate authority was available, the present Writ Petition is not maintainable. It was further urged that the sales U/s 3(a) and 3(b) of CST Act are mutually exclusive and one set of transaction cannot be treated as falling both U/s 3(a) & 3(b) of the CST Act. As per Section 3(a), a sale or purchase of goods shall be deemed to take place in course of inter-state trade or commerce if the sale or purchase occasions movement of goods from one State to another. The words “a sale or purchase” indicate a single transaction of sale, which occasions the movement of goods. Thus the movement of goods cannot be co-related to two transactions of sale. It was urged that in the present case, the sale between IJT and Petitioner is a sale U/s 2(g) of the CST Act and the second one between the Petitioner and IMFA (ICCL) is a “deemed sale” i.e the transfer of right to use goods as defined in Article 366 (29-A (d)) of the Constitution of India within the State of Orissa. In such circumstances, the plea of the inter-state lease as advanced by the Petitioner is to be rejected. In the present case, the Petitioner is not an agent of IMFA but it is an independent dealer and has purchased the goods from IJT in course of inter-state sale on its own account paying the price and the tax on furnishing ‘C’ Forms. The Petitioner also received the goods on delivery at Choudwar through IMFA. So the sale U/s 3(a) was complete between IJT of Delhi and the Petitioner a registered dealer in Orissa. Movement of goods started from Delhi to Orissa and Central Sales Tax was levied, in the State of Delhi since movement commenced from that State as per Section 9 of the Central Sales Tax Act. In such circumstances, the stand of the Petitioner that the transfer of right to use the 90 TPH boiler plant was by an inter-state lease is not sustainable and the only conclusion that can be derived is that the lease value/rentals received by the Petitioner, a registered dealer in Orissa, from IMFA is liable to tax under OST Act.

15. The further case of the Revenue is, that the Petitioner transferred the right to use of the 90 TPH boiler with other machineries to IMFA after the same was tested, erected and commissioned at Choudwar. Hence such transfer took place at Choudwar in Orissa and the said deemed sale occurred in Orissa. Therefore, the assessing officer has rightly imposed tax on such deemed sale under the OST Act. It is further submitted that though the lease agreement was executed in West Bengal in the office of the Petitioner, but the transfer of right to the use of boiler and other accessories could not have been taken place at that time since the goods itself was not available to be so transferred. The Learned Counsel emphasized that Hon'ble Supreme Court in paragraph 35(d) of the Judgment in 20th Century Finance (supra) has clearly laid down the law to that effect. Thus the “taxable event” i.e transfer of right to use of 90 TPH boiler took place in Orissa on or after the delivery of goods. The Petitioner, therefore, cannot take the stand that the deemed sale of hiring of boiler took place in West Bengal and not in Orissa. In the case of the Petitioner the taxable event of transfer of right to use of the boiler with other equipments would be, on the delivery of the goods, which took place at Choudwar in Orissa. In support of his contention Learned' counsel also relied on the Judgment of Hon'ble Kerala High Court in the case of First Leasing Company of India Ltd. v. State of Kerala, (2007) 6 VST 805 and tried to distinguish the facts of ITC Classic Finance case (supra) from the facts of the Petitioner's case. According to him, in the Classic Finance case (supra), the lease agreement was for hiring of complete manufacturing machines like photo copier and stabilizer which were capable of being used by the lessee, whereas, in the case of the Petitioner, lease was in respect of boiler plant which was intended to be erected at Choudwar by IJT, as a works contract, by using the goods purchased by the Petitioner. He further submitted that in ITC Classic case (supra) the goods were taken delivery by the lessee from the carrier, whereas, in the present case, the Petitioner became the owner of the goods on being placed in the common carrier and delivery was taken by IMFA on the behalf of the Petitioner. The lease transaction commenced at a future date upon erection, testing and commissioning of boiler by IJT. The further case of the Revenue is that, the lease agreement was executed prior to the movement of the goods, pursuant to the contract of purchase between the Petitioner and IJT, which occasioned the said movement. In case of Section 3(b) of the CST Act, a sale, contract of sale has to come into existence “after” the movement of goods starts and “before” the movement ceases. So, there cannot be 3(b) sale in the present case, by endorsement of the document of title to the goods in course of transit. More over, admittedly delivery of possession was taken by IMFA on behalf of the Petitioner, after the goods reached Choudwar and that too for delivery of same to IJT for carrying out works contract by it for the Petitioner. So there is no scope to urge that the goods are for inter-state sale by way of lease.

16. The further case of the Revenue is that the lease agreement in question was not intended to be a lease of immovable property otherwise the same should have been made through a registered instrument as stipulated in Section 107 of the Transfer of Property Act. Relying on Clause (4) of the agreement, Learned Counsel submitted that as per Section 148 of the Contract Act, a bailment can only be possible in case of goods and there is no concept of bailment of immovable property. Further case of the Revenue is that, provisions of Explanation (a) to Section 2(g) of OST Act will operate only, where the transfer of right to use took place inside Orissa. Hence, the said provision is not required to be declared ultra vires as it does not prima facie offend Article 286 or Entry 92A of the List-1 of the Constitution or any provisions of the CST Act.

17. The further case of the Revenue is that the Petitioner opened a branch office at Cuttack and site office at Choudwar. On 09.07.1996 the Petitioner applied for registration under the OST Act and was granted the R.C-for carrying on the business of “Resale of Plant & Machinery”. The aforesaid Registration Certificates were obtained only by showing the lease agreement and the Tripartite agreement executed “during 1995 with the clear intention to carry on the business of resale i.e by way of transfer of right to use the good in Orissa after M/s. IJT carried on the works contract by use of the said materials purchased in course of inter-state sale.

18. On 22.07.1996 the Petitioner gave an undertaking before the C.T.O to deduct 4% tax from the bills of works contract payable by it to IJT. Way bills were obtained by the Petitioner from the Sales Tax Officer, Cuttack-II Circle and the component parts of the Boiler were transported to Choudwar. As per the stipulation and undertaking the Petitioner deducted the tax at source from the bills paid to IJT for executing the works contracts and also paid C.S.T @ 4 % on the supply of equipments made by IJT against ‘C’ forms. IJT had also registered itself as a dealer before the C.T.O, Cuttack-II Circle for carrying on the business of works contract and was assessed as a work contractor. The registration certificate was kept valid from 12.08.1997 to 01.04.2001, when it was surrendered by IJT. Thus the Petitioner had purchased the goods on paying C.S.T and the inter-state sale between IJT and the Petitioner was complete under Section 3(a) of the C.S.T Act. Such goods were used by IJT, for execution of the works contract in manufacturing, erecting and commissioning the boiler plant at Choudwar. Thereafter the ownership was transferred to the Petitioner. M/s. IMFA did not purchase the goods before completion of the works contract executed by IJT. there was no sale of the goods by way of endorsement under Section 3(b) of the C.S.T Act during transit of such goods either. On the other hand, in course of assessment of the Petitioner for the year 1997-98, it took a stand in its letter dated 5.6.2000 submitted before the STO whereby it was admitted that M/s. IMFA took delivery of equipments in the ICCL Power Plant premises on behalf of the Petitioner. So there was no scope of passing of the title of the goods consigned by the IJT to the Petitioner in course of transit.

19. In view of such rival contentions, the questions which fall for consideration by this Court are:

(i) Whether the exhaustion of statutory remedy can be a bar in this case for this Court to exercise its jurisdiction under Article 226 of the Constitution?

(ii) Whether a deafer is liable to pay tax on the ground that he admitted to pay tax on a certain transaction even if the said transaction is not taxable within the provisions of the OST Act?

(iii) Whether the lease rental received by the Petitioner from IMFA is exigible to tax under the provisions of the OST Act?

20. The preliminary objection raised by the Revenue with regard to the maintainability of the Writ Petition may be taken up first. In this connection, reference may be made to the decision of the Hon'ble Supreme Court in Calcutta Discount Co. Ltd. v. Income Tax Officer, Companies District-1, Calcutta, reported in (1961) 41 ITR 191 : AIR, 1961 SC 372, wherein it was held as under:

“It is well-settled however that though the writ of prohibition or certiorari will not issue against an executive authority, the High Courts have power to issue in a fit case an order prohibiting an executive authority from aoting-without jurisdiction. Where such action of an executive authority acting without jurisdiction subjects or is likely to subject a person to lengthy proceedings and unnecessary harassment, the High Courts, it is well-settled, will issue appropriate orders or direction to prevent such consequences.”

21. It was also observed by their Lordships that the existence of an alternative remedy is not always a sufficient reason for refusing a party quick relief by a writ or order prohibiting an authority from acting without jurisdiction or from continuing such action.

22. The Hon'ble Apex Court in the case of Tata Engineering and Locomotive Company Ltd. v. The Assistant Commissioner of Commercial Taxes, reported in (1967) 19 STC 520, also held as under:

“The jurisdiction of the High Court under Article 226 of the Constitution is extraordinary and has to be used sparingly. It is not Appellate and it cannot be a substitute for the ordinary remedies at law. Nor is its exercise desirable if facts have to be found on evidence. The High Court, therefore, leaves the party aggrieved to take recourse to the remedies available under the ordinary law if they are equally efficacious and declines to assume jurisdiction to enable such remedies to be by passed. To these there are certain exceptions. One such exception is where action is being taken under an invalid law or arbitrarily without the sanction of law. In such a case, the High Court may interfere to avoid hardship to a party which will be unavoidable if the quick and more efficacious remedy envisaged by Article 226 were not allowed to be invoked.”

23. In Paradip Port Trust v. Sales Tax Officer, reported in (1998) 4 SCC 90 : AIR 1999 SC 552 the Hon'ble Supreme Court was dealing with a somewhat similar situation. In that case questions relating to interpretation of the words “transfer of right to use of goods” in sub-clause (d) of Clause 29A of Article 366 fell for consideration. The Hon'ble Orissa High Court instead of deciding the matter directed the parties to avail of the alternative remedy against the order of assessment passed by the Sales Tax Officer. The Hon'ble Supreme Court held that since the question involved in the Writ Petition related to interpretation of sub-clause (d) of Clause 29A of Article 366 and taxability of transaction in respect of which the sales tax has been assessed by the Sales Tax Officer, the High Court should have dealt with the matter instead of sending the assessee to avail of the remedy of appeal under the Sales Tax Act. As such the Hon'ble Supreme Court set aside the Judgment of the High Court and remanded the matter to the High Court for decision on merits. Following the same ratio, here also we find that almost identical questions are involved. In these Writ Petitions the jurisdiction of the assessing officer for levying tax on lease rental has been questioned. The core issue here is whether there was a taxable transfer of right to use the goods. This issue is not merely a question of law, it is also a question with constitutional overtones and such question may be decided by the High Court under Article 226 of the Constitution of India without relegating the assessee to the alternative remedy of appeal.

24. Similarly in Union of India v. State of Haryana, reported in (2000) 10 SCC 482, a question came up for consideration whether alternative remedy is an adequate remedy in the context of the sales tax assessee. In that case the question was whether the sales tax authorities can assess sales tax on rental which was charged by the Union of India for supply of telephones. The Union of India filed Writ Petitions before the respective High Courts challenging the levy. Those Writ Petitions were dismissed in view of alternative remedy in form of statutory appeal. In that context the Hon'ble Supreme Court held that the High Courts should not have dismissed the Writ Petitions as the questions raised were purely questions of law which required determination whether the provision of telephone connections and instruments amounted to sale and even so why was the Union of India was not exempted from sales tax under the respective statutes. The Supreme Court held that such questions should not be “put through the mill of statutory appeals in the hierarchy”. Saying so, the Hon'ble Supreme Court set aside the orders passed by the respective High Courts and remanded the Writ Petitions to the High Court for decision on merit.

25. In BSNL v. Union of India, reported in (2006) 3 SCC 1 : AIR 2006 SC 1383, in paragraph 34 at pages 1393-94 the Learned Judges of the Supreme Court dealt with questions relating to the competence of the State to levy sales tax on telecommunication. The Supreme Court held that such questions cannot be decided by the assessing authorities. The Supreme Court also held that the competence to levy tax is a constitutional question and should be decided by the High Court.

26. Apart from that, the impugned assessment orders are passed by relying on Explanation to Section 2(g) of the OST Act. The Petitioner has challenged the constitutional validity of the said Explanation to Section 2(g) of the Act, with a prayer either to strike it down or read it down as not covering inter-state leases or leases which have been executed outside the State of Orissa. Where a constitutional validity of any statute on which jurisdiction of the statutory authorities is made to depend, the same should be decided by the High Court under its writ jurisdiction.

27. it is not possible for a statutory tribunal to read down the provision of an Act in order to save its from being struck down. A statutory tribunal is to give a literal interpretation of the statute. That is why in this case the Writ Petition is maintainable even without the exhaustion of the statutory remedy..

28. Coming to question No. (ii), this Court holds that there is no estoppel against statute. If a person, is not liable within the four corners of statute to pay tax on any transaction, he cannot be assessed to tax merely because he previously admitted his liability on a wrong notion. Liability to pay tax has always to be imposed by law, it cannot be imposed on admission. Article 265 of the Constitution is very clear on this point.

29. To deal with question No. (iii) it is necessary to notice the relevant constitutional and statutory provisions and some judicial pronouncements.

30. Parliament enacted the Constitution (Forty-sixth Amendment) Act, 1982, by which clause (29A) was inserted in Article 366 it reads: “(29A) ‘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 installments;

(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 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 such transfer, delivery or supply of any goods shall be deemed to be a sale of those goods by the persons making the transfer, delivery or supply and a purchase of those goods by the person to whom such transfer, delivery or supply is made.”

31. Entry 92-A of List-I of the Seventh Schedule to the Constitution confers power on the Union to levy tax on sale and purchase of goods other than newspapers where such sale or purchase takes place in the course of inter-State trade or commerce.

32. Entry 54 of List II of the Seventh Schedule confers power on the State Legislature to levy tax on the sale or purchase of goods other than newspapers subject to the provisions of entry 92-A of List I.

33. Clause (1) of Article 286 prohibits a State from making any law for the purpose of imposing or authorizing imposition of a tax on the sale or purchase of goods where such a sale or purchase takes place (a) outside the State; or (b) in the course of the import of the goods into or export of the goods out of, the territory of India. Parliament is empowered by clause (2) to formulate principles to determine when a sale or purchase of goods takes place in any of the ways mentioned in clause (1). Clause (3) of Article 286 was substituted by a new clause, which reads thus:

“(3) Any law of a State shall, in so far as it imposes, or authorizes the imposition of:—

(a) a tax on the sale or purchase of goods declared by Parliament by law to be of special importance in inter-state trade or commerce; or

(b) a tax on the sale or purchase of goods, being a tax of the nature referred to in sub-clause (b), sub-clause (c) or subclause (d) of clause (29A) of Article 366, be subject to such restrictions and conditions in regard to the system of levy, rates and other incidents of the tax as Parliament may by law specify.”

34. Sections 3 and 4 of the Central Sales Tax Act contain provisions to indicate when a sale or purchase of goods is said to take place in the course of inter-State trade or commerce and outside a State. Sections 3 and 4 of the Central Sales Tax Act, 1956 are reproduced here in below:

“Sec. 3. When is a sale or purchase of goods said to take placed in the course of inter-State trade or commerce: A sale or purchase of goods shall be deemed to take place in the course of inter-State trade or commerce if the sale or purchase:—

(a) occasions the movement of goods from one State to another; or

(b) is effected by a transfer of documents of title to the goods during their movement from one State to another.

Explanation 1.— Where goods are delivered to a carrier or other bailee for transmission, the movement of the goods shall, for the purpose of clause (b), be deemed to commence at the time of such delivery and terminate at the time when delivery is taken from such carrier or bailee.

Explanation 2.— Where the movement of goods commences and terminates in the same State it shall not be deemed to be a movement of goods from one State to another by reason merely of the fact that in the course of such movement the goods pass through the territory of any other State.

35. Sec. 4. When is a sale or purchase of goods said to take place outside a State:—

(1) Subject to the provisions contained in Section 3, when a sale or purchase of goods is determined in accordance with Sub-Section (2) to take place inside a State, such sale or purchase shall be deemed to have taken place outside all other States.

(2) A sale or purchase of goods shall be deemed to take place inside a State if the goods are within the State.

(a) in the case of specific or ascertained goods, at the time the contract of sale is made; and

(b) in the case of unascertained or future goods, at the time of their appropriation to the contract of sale by the seller or by the buyer, whether assent of the other party is prior or subsequent to such appropriation.

Explanation - Where there is a single contract or sale or purchase of goods situated at more places than one, the provisions of this Sub-Section shall apply as if there were separate contracts in respect of the goods at each of such places.”

36. By virtue of the Constitution (Forty-sixth Amendment) Act, legislative power was conferred on State Legislatures to levy sales tax on transactions-which are strictly not sales within the purview of the Sale of Goods Act, but covered by sub-clauses (a) to (f) of clause (29A) of Article 366 of the Constitution.

37. In the OST Act Section 2(g) defines expression ‘Sale’ as follows:

Sec. 2(g) “Sale” means with all its grammatical variations and cognate expression, any transfer or property in goods for cash or deferred payment or other valuable consideration and includes:—

(i) transfer, otherwise than in pursuance of contract of property 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 installments;

(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 considerations; but does not include a mortgage, hypothecation, charge or pledge and the words ‘buy’ and ‘purchase’ shall be constructed accordingly.)

“[Explanation:—

(a) A sale or purchase of goods shall be claimed to take place inside the State if the goods are within the State:—

(i) in the case of specific or ascertained goods at the time the contract of sale is made; and

(ii) in the case of unascertained or future goods at the time of their appropriation to the contract of sale by the seller or by the buyer, whether assent of the other party is prior or subsequent to such appropriation;

(b) Where there is a single contract of sale or purchase of goods situated at more places than one, the provisions of this Explanation shall apply as if there were separate contracts in respect of the goods at each of such places.]”

38. In Builders Association of India, (1989) 73 STC 370, one of the questions considered by the Supreme Court was whether the power of the State Legislature to levy tax on the transfer of property in goods involved in the execution of works contracts referred to in sub-clause (b) of clause (29A) of Article 366 of the Constitution, is subject to the restrictions contained in Article 286 of the Constitution. Answering the question in the affirmative, it was held by the Constitution Bench of the Supreme Court as follows:

“The object of the new definition introduced in clause (29A) of Article 366 of the Constitution is, therefore, to enlarge the scope of ‘tax on sale or purchase of goods’ wherever it occurs in the Constitution so that it may include within its scope the transfer, delivery or supply of goods that may take place under any of the transactions referred to in sub-clause (a) to (f) thereof wherever such transfer, delivery or supply becomes subject to levy of sales tax. So construed the expression ‘tax on the sale or purchase of goods’ in entry 54 of the State List, therefore, includes 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 also.”

39. The Hon'ble Supreme Court further held:

“We are of the view that all transfers, delivers and supplies of goods referred to in sub-clauses (a) to (f) of clause (29A) of Article 366 of the Constitution are subject to the restrictions, and conditions mentioned in clause (1), clause (2) and sub-clause (a) of clause (3) of Article 286 of the Constitution and the transfers and delivers that take place under sub-clauses (b), (C) and (d) of clause (29A) of Article 366 of the Constitution are subject to an additional restriction mentioned in sub-clause (b) of Article 286(3) of the Constitution.”

40. In Gannon Dunkerley & Co., (1993) 88 STC 204, the Hon'ble Supreme Court also took a similar view and held as follows:

“it is not permissible for the State Legislature to make a law imposing tax on such a deemed sale which constitutes a sale in the course of inter-State trade or commerce under Section 3 of the Central Sales Tax Act or an outside sale under Section 4 of the Central Sales Tax Act or sale in the course of import or export under Section 5 of the Central Tax Act.”

41. Thus, law is well settled that any State law with respect to “deemed sales” covered by sub-clauses (a) to (f) clause (29A) of Article 366 must conform to the requirements of Article 286 and the provisions of the Central Sales Tax Act. For the purposes of taxation, a “deemed sale” cannot be distinguished from an “ordinary sale”.

42. In ITC Classic's case (supra) the Company was a registered dealer under Andhra Pradesh General Sales Tax Act and CST Act, 1956 and was carrying on business of hiring out machinery, plant and equipments for rent. For the purpose of lease of equipments, agreement between the customer and ITC was executed. It purchased goods accordingly to the specification of its customers and instructed the manufacturer or suppliers to consign them directly to the customer who took them on hire, in a typical case, the equipment was inspected by the customer at the place of their manufacture outside the State and the customer also placed an order for supply in anticipation of confirmation by the Appellant. The manufacturer raised invoices against ITC Classic Finance showing the customer as the consignee. The claim of ITC was that since the goods moved outside the State as a result of lease agreement, the transaction was in the course of inter-state trading and no tax was leviable on the Appellant under Section 5-E of the Andhra Pradesh General Sales Act, 1957 on the transfer of right to use the goods. On these facts, the Hon'ble Andhra Pradesh High Court held that the lease transaction, in question was clearly an inter-state transaction because the movement of goods from the State of Madras to Hyderabad was the result of a contract. It was further held that it was immaterial in which State the property in the goods passed. In that case, the constitutional validity of Section 5-E of the Andhra Pradesh Sales Tax Act came up for consideration. The Andhra Pradesh High Court held that it was not open to the State legislature to frame its law in such a manner as to convert an outside sale or sale in course of inter- state into a sale which was deemed to take place within the State. The Hon'ble Court further observed that the effect of accepting such an explanation would be to bring goods which are the subject matter of inter-state transaction within the tax net of the State sales laws of Andhra Pradesh. Such an interpretation was directly contrary to the settled law in Builders Association's case (supra) and Gannon Dunkerly's case (supra). In the said case, the Hon'ble Court also differed from the decision of Bombay High Court in 20th Century Finance Corporation Ltd. v. State of Maharashtra, reported in 75 STC 217 (supra) wherein the Hon'ble Bombay High Court held that it was open to the State of Maharashtra to levy tax on lease transaction on the basis that the goods leased out were located in the State of Madras at the time of use.

43. The above Judgment of the Andhra Pradesh High Court was upheld and confirmed by the Constitution Bench of the Hon'ble Supreme Court in 20th Century Finance Corporation's case but the decision of Bombay High Court in 20th Century Finance Corporation was overruled. In the above case the Hon'ble Apex Court inter alia held as follows:

“we are of the view that the power of State Legislatures to enact law to levy tax on the transfer of right to use any goods under entry 54 of List II of Seventh Schedule has two limitations-one arising out of the entry itself; which is subject to entry 92- A of List I, and the other flowing from the restrictions embodied in Article 286. By virtue of entry 92A of List I, Parliament has power to legislate in regard to taxes on sales or purchase of goods other than newspapers where such sale or purchase takes place in the course of inter-State trade or commerce. Article 269 provides for levy and collection of such taxes. Because of these restrictions, State Legislatures are not competent to enact law imposing tax on the transactions of transfer of right to use any goods which take place in the course of inter-State trade or commerce. Further, by virtue of clause (1) of Article 286, the State Legislature is precluded from making law imposing tax on the transactions of transfer of right to use any goods where such deemed sales take place (a) outside the State and (b) in the course of import of goods into the territory of India. Yet, there are other limitations on the taxing power of the State Legislature by virtue of clause (3) of Article 286. Although Parliament has enacted law under clause (3)(a) of Article 286 no law so far has been enacted by Parliament under clause (3)(b) of Article 286. When such law is enacted by Parliament, the State Legislature would be required to exercise its legislative power in conformity with such law. Thus, what we have stated above, are the limitation on the powers of State Legislatures on levy of sales tax on deemed sales envisaged under sub-clause (d) of clause (29A) of Article 36 of the Constitution.”

44. These are the limitations on the power of the State Legislatures on the levy of sales tax, on deemed sales envisaged under subclause (d) of clause (29A) of Article 366 of the Constitution. The State Legislature in exercise of its Legislative power under entry 54 of List II read with Article 366(29A)(d) is not competent to levy sales tax on the transfer of rights 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. This is clear from the view expressed by the Apex Court and which are set out below:

“(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 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 sate would be the place where the contract is executed and not where the goods are located for use.

(d) In case where goods are not in existence or where there is an oral or implied transfer of the right to use goods, such transactions may be effected by the delivery of the goods. In such cases the taxable event would be on the delivery of goods.

(e) The transcation of transfer of right to use goods cannot be termed as contract of bailment as it is deemed sale within the meaning of legal fiction engrafted in clause (29A)(d) of Article 66 of the Constitution where in the location or delivery of goods to put to use is immaterial.”

45. Thus the Constitution Bench of the Hon'ble Supreme Court further held that the “charging event” which attracts levy of tax is the event of such transfer are not either delivery of the goods as such or their subsequent use. Where the written lease agreements were entered into between the parties, the transfer of right to use goods takes place by reason of execution of such agreement and, therefore, the place where such transfer of right to use takes place is necessarily the State where the said agreement is executed. The Constitution Bench further clarified that in cases where goods are not in existence or where there is oral or implied transfer of right to use of goods; such transaction may be effected by delivery of goods. In such cases the taxable event would be the delivery of goods. Thus if the goods covered by lease agreement are not in existence at the time of execution of the agreement but came into existence afterwards, it is only the point of time of transfer of right to use goods which stands posted. But the place where such transfer of right to use goods takes place, i.e place of execution of lease agreement, still remains the same. “Situs of transaction” is, therefore, not changed only by the reason of the fact that the goods leased out were not in existence at the time of execution of the lease agreement.

46. A Division Bench of this Court in the case of Sundarm Finance Limited (supra) held that inter-state lease could not be subjected to tax by the State of Orissa and accordingly the impugned assessment orders were quashed by the Division Bench.

47. The foundation of all the activities carried on by the Petitioner, IJT and IMFA stem from the tripartite agreement entered into amongst them on 31.7.1995 and the lease agreement entered into between the Petitioner and the IMFA on the same day. The placing of the purchase order by the Petitioner with IJT is because of the lease agreement entered into between the Petitioner and IMFA. Both the agreements are inextricably connected and one cannot be separated from other. The activities of all these three parties are integrated. In the absence of the lease agreement the goods in question could not have moved from the State of Haryana to the State of Orissa. Thus, the source of movement of goods in question from Haryana to Orissa is the lease agreement dated 31.7.1995 entered into between the Petitioner and IMFA in Calcutta. That is the foundation of all subsequent activities i.e sale of 90 TPH boiler by IJT to the Petitioner and the installment of the same in IMFA's site at Choudwar and payment of lease rental by IMFA to the Petitioner. In that view of the matter, in the present case the lease in question is nothing but an inter-state lease which is a deemed sale. The transaction in questions is clearly an inter-state transaction, falling within Section 3 of the C.S.T Act. The movement of 90 TPH boiler from outside that is from the State of Haryana to the State of Orissa was the result of the agreement dated 31.7.1995 It is not necessary that the inter-state movement must be preceded by a sale. If the movement of the goods was because of a clause of the contract or is an incident of contract, it would be deemed to have taken place in course of inter-state trade or commerce. In determination of the inter-state character of such a sale, the “situs” is immaterial. An inter-state sale or an inter-state lease can only be taxed under the provisions of the CST Act.

48. Here, the lease agreements was admittedly executed prior to 2002 i.e when the necessary amendment was made to the CST Act to cover deemed sale such as the lease. So it cannot be taxed under the CST Act in the absence of a statutory provision. In the case of inter-state trade, the inter-state transaction can be taxed under the CST Act, only by the State from which the movement of goods originates. In that event, the inter-state lease cannot be subjected to tax by the State of Orissa under the provisions of the OST Act. In case of inter-state lease, the place where the transfer of right to use is effected or where the property passes is immaterial. Apart from that, since the transfer of right to use goods has been effected by two agreements both dated 31.7.1995, which were executed in Calcutta, the same cannot also be taxed in the State of Orissa. The case of the Petitioner is identical with ITC Classic's case (supra).

49. In view of the above, we are of the view that deemed sales including leases were to be treated exactly on the same footing as ordinary sales and were subjected to the same restrictions contained in Article 286 of the Constitution of India. Neither ordinary sale nor deemed sale could be subjected to tax by a particular State if such sale or deemed sale was either in the course of inter-state trade or was effected outside the State. Therefore, the explanation to Section 2(g)(iv)(a)(i) of the OST Act which stipulates that the sale or purchase of goods shall be deemed to take place inside the State if the goods are within the State at the relevant time would have to be read down to the effect that it would not be applicable to a deemed sale which was an outside state sale or an inter-state sale or a sale in course of import of the goods into or export of the goods outside India.

50. The contention of the Revenue is that since the Petitioner has not paid any tax in the West Bengal, the Sate of Orissa acquires jurisdiction under the law to levy tax in the said transaction. It is not acceptable. Under the law, the State of West Bengal, where the lease agreement was executed, is competent to levy tax under the provisions of CST Act. The transfer of right to use goods has become taxable by virtue of amendment brought to the CST Act, 2002. In the absence of any express provision for retrospective applicability of the said amendment, the same has only prospective effect and does not apply to transfer of right to use goods which was effected much prior to 2002.

51. For the reasons discussed above, the contention of the Revenue that as the payment of lease rental commenced after the boiler in question was installed, erected and commissioned at IMFA's plant at Choudwar, the State of Orissa acquires jurisdiction to levy tax on such lease rental cannot be sustained. The further case of the Revenue that after installation, erection and commission of the boiler, the goods in question cease to be the same goods for which agreement was executed at Calcutta on 31.7.1995 is equally misconceived. As a matter of fact, the boiler which was transported from Haryana to Orissa pursuant to the lease agreement was the same boiler which was installed, erected and commissioned in IMFA's plant at Choudwar. It is only if the said erected and commissioned boiler is considered to be immovable property because of value addition, it may be regarded as different from the boiler which was transported from Haryana to Orissa pursuant to the lease agreement executed in Calcutta. But then if the said erected, commissioned boiler is regarded as immovable property, no tax under Section 2(g) of the OST Act can be charged on the lease rental, as tax can only be charged on transfer of right to use goods and not in respect of lease of immovable property.

52. The Revenue also strongly relied on two Judgments of Kerala High Court, i.e (i) Madras Credit & Investments Ltd. v. State Of Kerala, (2004) 134 STC 264. This case dealt with hire purchase transactions. In case of a hire purchase transaction, if the delivery of goods on hire purchase has taken place within the State then the same can be taxed by that State. This case is of no help to the Revenue in view of the decision of the Constitution Bench of Hon'ble the Supreme Court in the case of 20th Century Finance Corporation (supra) where in it is held that the place of delivery of goods is immaterial and irrelevant. The other Judgment of the Kerala High Court on which the Learned Counsel for the Revenue relied is in the case of First Leasing Company's case. This Judgment is also of no help to the Revenue. The transactions in question in that case were partly a hire purchase and partly a leasing transactions. Under the law a hire purchase transaction stands on a completely different footing from to a lease transaction, but the Hon'ble Kerala High Court has not drawn any distinction between the hire purchase transaction and a lease transactions. This Judgment is based and followed in earlier Judgment of the Kerala High Court in the case of Madras Credit Investment's case (supra).

53. In view of the discussions above, these Judgments are of no help to the Revenue. Further, in the First Leasing Finance's case the Company procured goods to be leased either within the State of Kerala or from outside the State of Kerala and made those available to the customers. The Hon'ble High Court treated the sale transactions and lease transactions as two distinct and separate transactions. Those facts are not present in this, case in which the purchase transaction between the IJT and the Petitioner and lease transaction between the Petitioner and IMFA are inextricably interlinked and connected and the movement of goods from Haryana to Orissa was occasioned as a result of both the purchase transaction and also by the lease transaction. If one is separated from other, neither of the two could take place.

54. Thus the lease transaction in question was clearly an “inter-state transaction”, because the movement of goods from the State of Haryana to Orissa was the result of both the agreements dated 31.7.1995 For the reasons aforesaid, the order of assessment dated 31.3.2004 for the assessment year 2000-2001 challenged in W.P (C) No. 9062 of 2004, order of assessment dated 25.2.2005 for the assessment year 2001-2002 challenged in W.P (C) No. 4716 of 2005 and orders of assessment dated 20.03.2006 for the assessment years 2002-2003 and 2003-2004 challenged in W.P (C) Nos. 10544 and 10550 of 2006 are all quashed.

56. All the Writ Petitions are allowed to the extent indicated above. There shall be no order as to costs.

I. Mahanty, J.:— I agree.