This Judgement of Punjab VAT Tribunal
has been delivered in one of my cases namely Prizm Payment services Pvt. Ltd.
vs State of Punjab Appeal No. 413 of 2013 decided on 15/11/2013
The penalty in this case has been levied and further upheld
by the lower appellate authority on the ground that providing ATM machine to
bank after bringing them from outside the State of Punjab, is a transfer of
right to use goods and is covered by the definition of sale as per Section 2
(zf) (iv) of the Punjab Value Added Tax Act, 2005 and since the appellant is
not registered under the Punjab Value Added Tax Act, 2005, attempt to evade tax
under the Punjab VAT Act is established. The goods
imported by the appellant were not meant for trade i.e. for further sale or
deemed sales and hence the appellant is not liable for registration under the
Punjab VAT Act, 2005.
The appellant provides services of handling and deployment of
ATMs for the Banks. The appellant procures ATM Machines and the related
equipments in compliance of the service agreement between the appellant and the
Banks, to be installed, operated and deployed at various locations in
Punjab, whereby the possession, control, management, operation and the property
in goods through out remains with the appellant as is clear from the terms of
agreement. The appellant is compensated for deployment of ATMs and their
management by a transaction fee to be paid every time by a customer of the bank
on availing the facility of ATMs successfully. This Tribunal has also ruled in
Transaction Solutions International (India) Pvt. Ltd., New Delhi Vs. The State
of Punjab (2013) 45 Punjab and Haryana Taxes 390 (PVT) that the
accessibility to the ATM being provided to the bank customer did not put the
customer in possession of ATM or any part thereof and the element of sales is
not involved.
—————
BEFORE JUSTICE HARBANS LAL, CHAIRMAN,
VALUE ADDED TAX TRIBUNAL, PUNJAB, CHANDIGARH.
Appeal No. 413 of 2013 Decided on
15.11.2013
M/s Prizm Payment Services Pvt. Ltd.
Versus
The State of Punjab
Present:- Mr. Amit Bajaj, Advocate,
counsel for the appellant.
Mr. Rajat Barisal, Assistant Advocate
General for the State.
ORDER
This appeal is directed against the order dated 19.3.2013
passed by the Deputy Excise and Taxation Comlmissioner(Appeals)-cum-Joint
Director (Investigation), Patiala Division, Patiala, whereby, he dismissed the
appeal preferred against the penalty order dated 28.11.2011 of the Assistant
Excise and Taxation Commissioner-cum-Designated Officer, Information Collection
Centre (For brevity, the ICC), Shambu (Import), imposing a penalty of
Rs.1,06,047/- U/s 51 (7) (b) of the Punjab Value Added Tax Act, 2005 (For
Short, the Act, 2005).
Shortly put, the facts are that the vehicle bearing
registration No. DL1LG-9404, while transporting the goods from Delhi to
Ludhiana reached the ICC, Shambu (Import) and the driver pr6duced the documents
as noted down in the penalty order. After examining the documents, the Checking
Officer detained the goods U/s 51 (6) (a) of the Act, 2005 on the ground that
the consignee dealer M/s Prizm Payment Services Pvt. Ltd. Ludhiana is not a
registered dealer under the Act, 2005 and is importing the taxable goods from
‘CI outside Punjab for trade. The documents covering the goods seemed to
be improper and ingenuine and the same needed verification. After
completing his report, the Detaining Officer forwarded the proceedings to
the Assistant Excise and Taxation Commissioner-cum-Designated Officer, ICC,
Shambu (Import), who after having conducted the enquiry in the matter, imposed
a penalty of Rs.1,06,047/- U/s 51 (7) (b) of the Act ibid vide order dated
28.11.201t. Being aggrieved therewith, the appellant-dealer went up in appeal,
which was dismissed by the Deputy Excise and Taxation Commissioner
(Appeals)-cum¬Joint Director (Investigation), Patiala Division, Patiala vide
his order dated 19.3.2013, where-against, this appeal has been filed.
I have heard the Ld. Counsel for the parties, besides
perusing the record with due care and circumspection.
Mr. Amit Bajaj, Advocate appearing on behalf of the
appellant-dealer urged with a good deal of force that the goods were being
imported in the State of Punjab alongwith proper and genuine documents and no
defect in the documents accompanying the goods was pointed out by the
designated officer. The goods were voluntarily reported at the Information
Collection Centre, which fact also finds mention in the order of lower
appellate authority. There was no violation of provisions of Section 51 of the
Act, 2005. The penalty in this case has been levied and further upheld by the
lower appellate authority on the ground that providing ATM machine to bank
after bringing them from outside the State of Punjab, is a transfer of right to
use goods and is covered by the definition of sale as per Section 2 (zf) (iv)
of the Punjab Value Added Tax Act, 2005 and since the appellant is not
registered under the Punjab Value Added Tax Act, 2005, attempt to evade tax
under the Punjab VAT Act is established. The goods imported by the appellant
were not meant for trade i.e. for further sale or deemed sales and hence the
appellant is not liable for registration under the Punjab VAT Act, 2005. The
appellant provides services of handling and deployment of ATMs for the Banks.
The appellant procures ATM Machines and the related equipments in compliance of
the service agreement between the appellant and the Banks, to be installed,
operated and deployed at various locations in Punjab, whereby the
possession, control, management, operation and the property in goods through
out remains with the appellant as is clear from the terms of agreement. The
appellant is compensated for deployment of ATMs and their management by a
transaction fee to be paid every time by a customer of the bank on availing the
facility of ATMs successfully. This Tribunal has also ruled in Transaction
Solutions International (India) Pvt. Ltd., New Delhi Vs. The State of Punjab
(2013) 45 Punjab and Haryana Taxes 390 (PVT) that the accessibility to
the ATM being provided to the bank customer did not put the customer in
possession of ATM or any part thereof and the element of sales is not involved.
The Id. State Counsel has argued on the lines of the penalty
order.
Mr. Rajat Bansal, Id. Assistant Advocate General for the
State could not distinguish Transactions Solutions International (India) Pvt.
Ltd., New Delhi in any manner.
I have well considered the above contentions.
This issue involved in this matter is sequarely covered by
the decisions of this Tribunal rendered in Transactions Solutions International
(India) Pvt. Ltd., New Delhi (Supra). Sequelly, this appeal is accepted and the
orders passed by both the authorities below being patently bad in law are set-
aside.
Pronounced in the open Court.
15th November, 2013
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