9911796707
TMI Blog2010 (5) TMI 773X X X X Extracts X X X X X X X X Extracts X X X X ..... a registered dealer under the KGST Act in Kerala, which is engaged in marketing products, like television, washing machine, etc., manufactured under the brand name "Sansui". The entire products are purchased by the respondent from Videocon International Ltd., of which respondent is a 100 per cent subsidiary company. In fact, Videocon International Ltd., the holding company, brings the goods to Kerala on stock transfer and the entire goods are sold to its subsidiary, the respondent, for marketing in Kerala. Even though Videocon International returned the entire sales as first sales on which they have collected tax from the subsidiary company, the respondent herein and they were assessed for sales tax, the assessing officer, while scrutinizi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Tribunal wherein, the Tribunal, after referring to a decision of this court in Bechu & Company v. Assistant Commissioner (Assessment), Special Circle I, Kozhikode reported in [2003] 132 STC 68, held that of the two conditions required, for assessment under section 5(2) of the Act, the first is satisfied in this case inasmuch as the products sold are covered by section 5(2) and the sale was also under the brand name. However, what is opposed by the State is the finding of the Tribunal on the sole question that the respondent is not the "holder" of the brand name in respect of the Sansui products sold by them. Counsel appearing for the respondent contended that the agreement produced before the Tribunal clearly establishes beyond doubt that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s claim that the respondent is a subsidiary of Videocon International Ltd. Going by the evidence on record, we have to only hold that the respondent is only a subsidiary of Videocon International Ltd., which marketed the entire products through the respondent in Kerala. Further, from the terms of the agreement between the respondent's holding company and Sansui Electric Ltd., Japan, extracted in Tribunal's order, we notice that Videocon International Ltd. and their subsidiary companies are allowed to use the trademark and brand name of Sansui in India. So much so, Videocon International Ltd., which made the first sales to the respondent, is also the holder of the brand name "Sansui" in India. Brand name has no relevance when the products ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efore completing the assessment in this case under section 5(2) of the Act. In fact, since the holding company is also assessed in the same city, the assessing officer could have easily collected the sales turnover of that company, which is the purchase turnover of the respondent and, if unusual margins are charged by the respondent, then, certainly, it could have been concluded that brand name value is loaded only by the respondent and section 5(2) could have been invoked against the respondent with an additional ground that the first sale in the State is not genuine and is only an attempt to evade payment of tax due in the State on the actual value of the products. We are unable to uphold the findings of the Tribunal that the respondent ..... X X X X Extracts X X X X X X X X Extracts X X X X
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