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TMI Blog1953 (1) TMI 16X X X X Extracts X X X X X X X X Extracts X X X X ..... . The first item of claim for deduction relates to sale of "loom hours" to different concerns. The amounts of deductions claimed under this head are Rs. 75,000-0-0, Rs. 71,250-0-0 and Rs. 1,57,500-0-0 for the quarters ending 30-9-1947, 30-6-1948 and 30-9-1948 respectively. The 2nd item of claim for deduction relates to sales made to M/s. Tata Iron and Steel Co., Jamshedpur, through M/s Shaw Wallace and Co. Ltd., of Calcutta. Claims on account of both these items have been disallowed by the learned Sales Tax Officer, Darbhanga. Assessment orders dated 4th March, 1949, for the five quarters are enclosed (Exs. 5A, A-1, A-2, A-3, A-4). The assessee then moved the Commissioner of Sales Tax, Tirhut Division, in appeal by petition dated 3rd May, 1948 (Exs. B, B1, B2, B3 and B4) on certain points out of which as given out in the order dated 12th July, 1949, of the learned Commissioner two were taken up, viz. sale of "loom hours" to the other concerns and sale of goods to M/s. Tata Iron and Steel Co., through M/s Shaw Wallace and Co., of Calcutta. The main contention of the assessee in claiming exemption for these items are (1) that the sale of "loom hours" is not a sale within the defini ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efined in Section 3 of the Transfer of Property Act, and it only says that immovable property does not include standing timber, growing crops or grass and whatever is not immovable property is presumably movable property. 'Loom hours' cannot by any stretch of imagination be called immovable property. In a fiscal Act, the law has got to be strictly interpreted and the assessee cannot claim exemp- tion so long as the words 'loom hours' do not find place in the definition in the Act or it (loom hours) is specifically excluded as 'tax free goods' by notification". The next point raised is about deduction under Section 5 (2) (a) (i). The assessee says that they sold some gunny bags to Tata Iron and Steel Co. Ltd. It is contended on their behalf that M/s Shaw Wallace and Co. were mere brokers and they only get the buyer and seller together. They are paid for their labour, but they never physically take charge of the property bought or sold. In the opinion of the Board this is not the correct position. As pointed out by the Sales Tax Officer the books of the assessee only show that goods were credited to Shaw Wallace and not to the Tatas. The Tatas are not recognised in the books of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 2(i) of the Act. (ii) Are sales of registered dealers, through commission agents, whose offices are situated outside Bihar, sales of the class mentioned in Section 5(2)(a)(ii)? Gopal Prasad for the Advocate-General, for the State. S. N. Bhattacharji and S. Ahmad Hussain, for the assessee. JUDGMENT RAMASWAMI, J.-This case is stated by the Board of Revenue under Section 25(1) of the Bihar Sales Tax Act (Act XIX of 1947). The assessee is an incorporated company called Messrs. Rameshwar jute Mills Limited of Mukhtapur in the district of Darbhanga. Assessment was made by the. authorities under Section 13(2)(b) of the Sales Tax Act for the five quarters ending 30th September, 1947, 31st December, 1947, 31st March, 1948, 30th June, 1948, and 30th September, 1948. For these five quarters the taxable turnover was determined to be Rs. 9,21,043-0-0, Rs. 9,39,910-0-0, Rs. 12,09,864-12-0, Rs. 6,58,752-0-0 and Rs. 6,92,895-0-0. The assessee claimed deduction in respect of two matters. In the first place, he claimed certain amounts shown as the price of "loom hours" which were sold by the assessee to different parties, the amount of the sale price being credited in the account books of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n behalf of the assessee that "loom hours" cannot by any stretch of language be deemed, to be goods, the sale of which can be taxed under the provisions of the Bihar Sales Tax Act. It was argued by the learned counsel that there was a domestic arrangement between the members of the Indian jute Mills Association, in consequence of which "loom hours" were allotted to each jute mill and they had also agreed that if for any reason a mill was not able to utilise its quota of "loom hours" it had the option of selling the "loom hours" to some other concern which was capable of utilising the same. It was submitted by the learned counsel that there was no legal sanction behind this arrangement and the so-called right to utilise the "loom hours" was not a right in the legal sense at all and so was not capable of being transferred or sold to any third parties. To put it differently, learned counsel said that "loom hours" in the context of the facts of the present case were not property in the legal sense and were not capable of being transferred. The materials on the record are not sufficient for determining the question whether the arrangement inter se between the jute Mills Association and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... special property. But this definition has no bearing on the question we have to decide in the present case. There is a juristic distinction between a right or legally protected interest and the res or object of that right. It is obvious that Section 2(11) of the Sale of Goods Act defines property in the sense of the right and not of the res. In the present case the answer to the question at issue must depend upon the construction of the language of Section 2(d) of the Bihar Sales Tax Act. Section 2(d) defines "goods" to mean "all kinds of movable pro- perty other than actionable claims, stocks, shares or securities and includes all materials, articles and commodities, whether or not to be used in the construction, fitting out, improvement or repair of immovable property". If Section 2(d) is compared to Section 2(7) of the Sale of Goods Act, it would be immediately apparent that the definition in the Sales Tax Act is much narrower in scope than the definition in the Sale of Goods Act. In the Bihar Sales Tax Act the definition of "goods" excludes not merely actionable claims but also stocks, shares or securities but in the Sale of Goods Act the definition includes stocks and shares. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efore the taxing authorities. The second question must therefore be answered against the assessee and it must be held that sales of gunny bags delivered to Messrs. Tata Iron Steel Co. of Jamshedpur were in fact sales made to Messrs. Shaw Wallace Co. and therefore not exempt from tax under the pro- visions of Section 5(2)(a)(ii) of the Bihar Sales Tax Act. In the result the first question must be answered in favour of the assessee and the second question in favour of the Department. There will be no order as to costs of this reference. SARJOO PROSAD, J. I agree but would wish to add a few observa- tions of my own. The question whether the sale of "loom hours" falls within the sale of goods under the Sales Tax Act is somewhat intriguing. The word "sale" discarding unnecessary details as defined in this Act means any transfer of property in goods for cash or deferred payment or other valuable consideration, and the word "goods" has been defined in. Section 2(d) of the Act to mean all kinds of movable property other than actionable claims, stocks, shares or securities, and includes all materials, articles and commodities, whether or not to be used in the construction, fitting o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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