2014 (2) TMI 765 - HC - VAT and Sales Tax

Whether equipment used during surgery amount to sale or not - Levy of Value Added Tax (UP VAT / Sales Tax) on stents and valves used by the petitioner as an intrinsic and integral element in the performance of a heart procedure at a super-speciality hospital. - Forty-sixth Amendment to the constitution - sale or works contract - Held that - this is not a case where the petitioner is contending that the sale of medicines at the pharmacy in the hospital is not assessable to tax. The only issue is as to whether the definition of the expression sale in Section 2 (ac) of the Act is attracted where a stent or valve is implanted in a patient in the course of a surgical procedure. Plainly, in our opinion, there is no element of sale. The fact that in the bill which is raised on the patient, the hospital recovers, apart from the cost of the surgery, charges towards drugs and other consumables would not render the transaction of the implantation of a stent or valve a sale within the meaning of Section 2 (ac) of the Act. - Decided in favor of assessee.

Issues Involved:
1. Legality of the order imposing tax on stents and valves used in heart procedures.
2. Applicability of the U.P. Value Added Tax Act, 2008 to medical procedures involving stents and valves.
3. Interpretation of 'sale' under Section 2(ac) of the U.P. Value Added Tax Act, 2008.
4. Relevance of Article 366 (29-A) of the Constitution in the context of medical services.
5. Precedents and judicial interpretations relevant to the case.

Issue-wise Detailed Analysis:

1. Legality of the Order Imposing Tax on Stents and Valves:
The petitioner challenged the Deputy Commissioner, Commercial Tax's order dated 27 September 2013, which taxed stents and valves used in heart procedures at a super-speciality hospital. The hospital argued that these items are not sold directly to patients but are used as part of surgical procedures, thus not constituting a 'sale.'

2. Applicability of the U.P. Value Added Tax Act, 2008 to Medical Procedures:
The core issue was whether the use of stents and valves during surgical procedures qualifies as a 'sale' under the U.P. Value Added Tax Act, 2008. The hospital contended that the medical service provided, including the implantation of stents and valves, should not be taxed as a sale of goods.

3. Interpretation of 'Sale' under Section 2(ac) of the U.P. Value Added Tax Act, 2008:
Section 2(ac) defines 'sale' as any transfer of property in goods for cash, deferred payment, or other valuable consideration. The court examined whether the implantation of stents and valves during surgery fits this definition. The hospital argued that the primary contract was for medical services, not for the sale of goods.

4. Relevance of Article 366 (29-A) of the Constitution:
Article 366 (29-A) allows certain composite contracts to be divisible into separate contracts for the sale of goods and services. However, the court noted that none of the six clauses in Article 366 (29-A) applied to medical services, such as those provided by the hospital. Therefore, the constitutional provision did not support the taxation of stents and valves as separate sales.

5. Precedents and Judicial Interpretations:
The hospital relied on the Supreme Court's judgment in Bharat Sanchar Nigam Ltd. v. Union of India, which discussed the divisibility of contracts under Article 366 (29-A). The court also referred to a Division Bench judgment of the Jharkhand High Court in Tata Main Hospital v. State of Jharkhand, where it was held that the supply of medicines and surgical items to indoor patients did not constitute a sale. The court distinguished this case from the Kerala High Court's judgment in Aswini Hospital Pvt. Ltd. v. C.T.O. Thrissur, which dealt with the sale of medicines and consumables in hospitals.

Conclusion:
The court concluded that the implantation of stents and valves during surgical procedures does not constitute a 'sale' under Section 2(ac) of the U.P. Value Added Tax Act, 2008. The dominant nature of the contract between the hospital and the patient was for medical services, not for the sale of goods. Consequently, the order of the Deputy Commissioner, Commercial Tax, imposing tax on stents and valves, was quashed. The court exercised its discretion under Article 226 of the Constitution to entertain the petition on merits, given the undisputed facts and the legal question involved.

Order:
The petition was allowed, and the order dated 27 September 2013, imposing tax on stents and valves used in medical services, was quashed. No order as to costs was made.

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