2010 (4) TMI 1002 - HC - VAT and Sales Tax

Whether, in the facts and circumstances of the case, the Tribunal was correct in law in holding that the appellant was liable to pay VAT in respect of goods transferred by it to its agent on consignment basis? Held that - The Tribunal, in the facts and circumstances of the case, was not correct in law in holding that the appellant was liable to pay VAT in respect of goods transferred by it to its agent on consignment basis. The impugned order is, therefore, set aside. Notification No. F.4(3)/P-II/VAT/2005/1158 dated December 2, 2005 issued by the Commissioner, Value Added Tax to the extent it requires payment of value added tax on the supplies made by a principal to a consignment agent, even if such supply is not coupled with transfer of property in the goods to the consignment agent and the transaction between the parties otherwise does not amount to sale in terms of the provisions of the Delhi Value Added Tax Act, 2004, is quashed. The demand notices impugned in the writ petition are hereby quashed. It will, however, be open to the Department to examine the nature of the transactions between the petitioner-company and its consignment agents in the light of the observations made in this judgment and thereafter proceed in accordance with law if it comes to the conclusion that the transactions between them constitute sale within the meaning of the Delhi Value Added Tax Act, 2004.

Issues Involved:
1. Definition of "Dealer" under Section 2(j) of the Delhi Value Added Tax Act, 2004.
2. Liability to pay VAT on goods transferred to a consignment agent.
3. Validity of the Notification No. F.4(3)/P-II/VAT/2005/1158 dated December 2, 2005.
4. Legislative competence of the State to levy VAT on stock transfers.
5. Maintainability of the writ petition.

Issue-Wise Detailed Analysis:

1. Definition of "Dealer" under Section 2(j) of the Delhi Value Added Tax Act, 2004
The Tribunal held that an agent to whom goods are transferred on consignment basis is covered under the definition of "dealer" under Section 2(j) of the DVAT Act, 2004. The court, however, clarified that even if the consignment agent is considered a "dealer," this does not automatically attract VAT unless the transfer of goods constitutes a "sale" under Section 2(zc) of the Act. The court emphasized that the mere physical transfer of goods without the transfer of ownership does not amount to a sale.

2. Liability to Pay VAT on Goods Transferred to a Consignment Agent
The Tribunal upheld the VAT Officer's decision to levy tax on goods transferred to the consignment agent. The court, however, disagreed, stating that VAT is payable only if the transfer of goods constitutes a "sale" under Section 2(zc) of the Act. The court found that the ownership of the goods remained with the appellant-company, and the consignment agent was merely selling the goods on behalf of the appellant. Therefore, the transaction did not constitute a sale, and the appellant was not liable to pay VAT.

3. Validity of the Notification No. F.4(3)/P-II/VAT/2005/1158 dated December 2, 2005
The notification issued by the Commissioner of Value Added Tax clarified that intra-State transfers of goods to an agent on consignment basis are considered sales and are liable to tax. The court held that the Commissioner cannot classify a transaction as a sale if it does not meet the definition of "sale" under the Act. The notification was quashed to the extent that it required payment of VAT on supplies made by a principal to a consignment agent without the transfer of property in the goods.

4. Legislative Competence of the State to Levy VAT on Stock Transfers
The petitioners argued that levying VAT on stock transfers from the principal to the consignment agent was beyond the legislative competence of the State under Entry 54 of List II of the Seventh Schedule to the Constitution. The court did not delve deeply into this issue, as it had already concluded that the transaction did not constitute a sale under the DVAT Act. Therefore, the question of legislative competence was not examined in detail.

5. Maintainability of the Writ Petition
The respondents contended that the writ petition was not maintainable as the petitioner could file objections under Section 74 of the DVAT Act. The court found that since the demand notice was based on the Commissioner's advance ruling, which could not be contested under Section 74, the writ petition was maintainable. The court held that directing the petitioners to file objections before the Commissioner would be futile, as the Commissioner was bound by his own ruling.

Conclusion:
1. The Tribunal was incorrect in holding that the appellant was liable to pay VAT on goods transferred to its consignment agent. The impugned order was set aside.
2. The notification requiring VAT on supplies made by a principal to a consignment agent without the transfer of property in the goods was quashed.
3. The demand notices issued to the writ petitioner were quashed. The Department may examine the transactions to determine if they constitute a sale under the DVAT Act and proceed accordingly.
4. The appeals and the writ petition were disposed of.

← Previous Next →