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TMI Blog1987 (1) TMI 451X X X X Extracts X X X X X X X X Extracts X X X X ..... cture of furniture at Calicut. SIDECO has other units also. The petitioner-unit is registered as a dealer under the Act. During the assessment year in question the petitioner-unit had transferred to other units of SIDECO, furniture of the value of Rs. 1,60,746. It appears that the other units of SIDECO to whom the furniture was transferred, have also been separately registered as dealers under the Act. In making the original assessment on 25th September, 1980, the assessing authority did not impose tax on the value of the furniture so supplied to the other units of SIDECO. The Deputy Commissioner who set aside the assessment under Section 35 was of the view that these other units to which the furniture was transferred were not "branches" of the petitioner inasmuch as the petitioner had paid only Rs. 10 towards renewal fee of its dealership registration certificate and had not paid any amount for "branch certificate renewal fee" for the other units, and therefore, the amount of Rs. 1,60,746 represented nothing but sales of furniture by the assessee to the other units and hence taxable. 3. The assessee had collected an amount of Rs. 1,60,464.97 from its customers to whom it had sol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... date of the original assessment. He complained that the Tribunal had not chosen to peruse the original files to ascertain this fact, though requested for. 8. Counsel for the Revenue would, on the other hand, contend that when the different units of SIDECO were separately registered under the Act, the position was that they should be treated as different dealers for the purposes of the Act and transfer of goods from one unit to another should be treated as a sale. Counsel further submitted that the order of the Deputy Commissioner was not barred by limitation as contended by Mr. Manhu, for the reason that the said order had been passed on 3rd September, 1984, though communicated beyond the period of four years. 9. We have carefully considered the rival contentions. We are of the opinion that the value of the furniture transferred from the petitioner-unit of SIDECO to its other units is not liable to tax. All the units in question are owned by SIDECO. An essential ingredient of a transaction of sale is the transfer of property in goods from one person (called the seller) to another person (called the purchaser) (vide Section 4 of the Sale of Goods Act, 1930). Under the Act, sale ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rightly excluded in the original assessment and was wrongly brought to assessment by the order of the Deputy Commissioner. 11. We may in this connection refer to the decision of the Allahabad High Court in U. P. State Cement Corporation Ltd. v. Commissioner of Sales Tax, U.P. [1979] 43 STC 476. That was a case where the Churk Cement Factory owned by the State of Uttar Pradesh supplied cement for construction of the Dalla Cement Factory, a newly established cement factory, also owned by the same State. The supplies were brought to assessment under the U. P. Sales Tax Act as if there were sales. One of the contentions urged by the Revenue in support of this plea was that both the cement factories had been separately registered as dealers under the Sales Tax Act and hence they should be treated as separate entities for purposes of the Act. Overruling the contentions of the Revenue it was held : 'Sale' is defined in Section 2(h) in the following manner : '(h) "Sale" means within its grammatical variations and cognate expressions, any transfer of property in goods for cash or deferred payment or other valuable consideration....' It will be seen that before a transaction can be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... purchases of copra. The Kerala State Legislature, therefore enacted the Kerala Sales Tax (Levy and Validation) Act, 1965 to validate the levy of tax on copra during the said two years, among others and to enable assessments to be made where non-existed. Section 3 of the Act, which was to operate retrospectively from 1st April, 1958, imposed a liability on every dealer to pay tax on his turnover relating to purchase of copra. Section 4(1)(iv) which operated from 27th September, 1965, enabled assessments to be made within three years (extended by subsequent amendment to five years) of the date of publication of the Validation Act in cases where the tax payable on the purchase of copra had not been assessed under the General Sales Tax Act. By virtue of this provision, as amended, the assessing authority could assess the tax due on the purchases of copra within five years from 27th September, 1965, i.e., before 27th September, 1970. The assessments in question for the two years 1961-62 and 1962-63 were made on 23rd September, 1968; but the orders were served on the assessee only on 4th February, 1972. The assessee challenged the said orders before this Court, inter alia, on the ground ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e it is made known, based on subsequent information, thinking or change of opinion. To make the order complete and effective, it should be issued, so as to be beyond the control of the authority concerned, for any possible change or modification therein. This should be done within the prescribed period, though the actual service of the order may be beyond that period. This aspect of the matter had not come up for consideration in the cases of Viswanaihan Chettiar [1954] 25 ITR 79 (Mad.) and Laxmidas Co. [1969] 72 ITR 88 (Bom) where the only question dealt with was whether service of the order after the prescribed period rendered it invalid. Unless, therefore, the order of the Deputy Commissioner in this case had been so issued from his office within the period prescribed, it has to be held that the proceedings are barred by limitation. This question has not been considered by the Tribunal. The Tribunal, which passed the order, apparently did not have the benefit of the decision in Malayil Mills case (T. R. C. Nos. 15 and 16 of 1981 decided on 7th June, 1982-Kerala High Court) which, so far as we could see, remains, unreported. The matter has therefore to go back to the Tribunal f ..... X X X X Extracts X X X X X X X X Extracts X X X X
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