C A V Order

Reserved on : 26.08.2022 Pronounced on : 04.11.2022

1. The instant Review Petition has been filed by the Petitioner Company seeking review of the Order/Judgment dated 5.12.2017 passed by this Court in W.P.(T) No.128/2015.

2. Challenge in the aforesaid Writ Petition was to the Order dated 30.5.2015 whereby the Revisional Authority i.e. the Additional Commissioner, Commercial Tax, Raipur in a Revision Petition under Section 49(1) of the Chhattisgarh Value Added Tax Act, 2005 (for short, “the VAT Act”) had affirmed the Order dated 22.12.2014 passed by the Assessing Officer i.e. the Divisional Commissioner, Division-I, Raipur.

3. The whole issue 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. State of Maharashtra” [2000 (6) SCC 12] and was also in contravention to the decision rendered by the coordinate Bench of this Court in the case of “M/s Raymond Ltd. & Anr. Vs. The Additional Commissioner, Commercial Tax & Ors.” [W.P. No.283/2005 decided on 5.5.2011]. Similar views have also been taken by the Madhya Pradesh High Court which too was relied upon by this Court while deciding the case of “M/s Raymond Ltd.” (supra).

5. According to learned Counsel for Review Petitioner, it is a case where the transfer of right to use has taken place outside the State of Chhattisgarh and therefore the State of Chhattisgarh could not have imposed or levied the tax on the said transaction. Referring to the provisions of Section 2(s)(vi) of the VAT Act, learned Counsel submits that it is only the element of transfer of right to use which has to be looked into by this Court while deciding the veracity of the assessment and the levy of tax on the said transfer or right to use is not a relevant factor to be considered. It is strictly the element of transfer of right to use and the point at which the transfer of right to use has been made which is paramount while deciding the issue under Section 2(s)(vi) of the VAT Act. In view of the same, learned Counsel for Review Petitioner has sought for the review of the Order passed by this Court in W.P.(T) No.128/2015 on

5.12.2017.

6. It was the further contention of learned Counsel for Review Petitioner that certain sales which are not leviable to tax are provided under Section 38 of the VAT Act. In the instant case also since the sale has taken place outside the State of Chhattisgarh, the transactions would not be leviable to tax. Thus, the Orders of the Assessing Officer and the Revisional Authority both were erroneous and which has not been properly considered by this Court, particularly keeping in view the decision of the Hon'ble Supreme Court in the case of “20th Century Finance Corpn. Ltd.” (supra) and also in the case of “M/s Raymond Ltd.” (supra).

7. Learned State Counsel on the other hand submits that it is a case where this Court rightly or wrongly has taken a decision upholding t