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TMI Blog2010 (9) TMI 982X X X X Extracts X X X X X X X X Extracts X X X X ..... o show the actual consumption of spares used in the annual maintenance contract could not be relied upon to determine the value of material used in the contract for the purpose of determining liability under section 3B of the Tamil Nadu General Sales Tax Act, 1959 when in fact the provision did not prevent the filing of a chartered accountant certificate to establish the cost of material used in the contract? Held that:- After the period of nearly 20 years, it would be a futile exercise for the assessing authority to examine the materials placed by the petitioner for arriving at the cost of parts used and instead fixing such cost of materials at 25 per cent of the value of the annual maintenance contract, would meet the ends of justice a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enance contracts executed by the petitioners, while failing to note that the same were purely service agreements entered into by the petitioners with the users of computers, no part of the income being attributable to sale of goods? (ii) Whether the Sales Tax Appellate Tribunal committed an error of law in holding that the chartered accountant certificate filed by the petitioners to show the actual consumption of spares used in the annual maintenance contract could not be relied upon to determine the value of material used in the contract for the purpose of determining liability under section 3B of the Tamil Nadu General Sales Tax Act, 1959 when in fact the provision did not prevent the filing of a chartered accountant certificate to est ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... title in movables for a price. The mere fact that it is not known in the beginning whether or not a part will have to be replaced is irrelevant. If there were no such agreements, it would not be known whether or not a part would be required to be replaced. It could not be denied that, even in the absence of any such agreements, if a part was required to be replaced and was replaced there would be a sale of that part. The same position remains even under the agreements. As and when a part is required to be and is replaced a sale takes place at that instance. To leave no room for doubt it must be mentioned that the tax is on sale. So if there is no replacement of a part then there is no sale of a part. So far as toners and developers are con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Appellate Assistant Commissioner, the petitioner placed reliance upon the auditor's certificate and certified the value of the materials involved to an extent of 6 per cent of total value of the annual maintenance contract. The petitioner is also said to have placed further materials which disclose the actual extent of spares used in the course of performing of the maintenance contract. In such circumstances, the Appellate Assistant Commissioner while upholding the order of the assessing authority that the case of the petitioner would fall under section 3B of the TNGST Act, remitted the matter back to determine the actual value of the materials used based on the details furnished by the petitioner. The petitioner approached the Tribu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fix the value of materials used in the execution of annual maintenance contract at 35 per cent for levy of tax. The learned counsel for the petitioner also submitted that since the assessment years involved in the present revisions related to the period even prior to those assessment years, instead of undergoing the strenuous exercise of remand and thereby the assessing authority to examine the materials for fixing the value of the cost of spares used, the petitioner would prefer any lessor percentage than what was fixed by the Tribunal in the appeals pertaining to the years subsequent to 1989-90. We have heard learned Special Government Pleader (Taxes) and we are also of the considered opinion that after the period of nearly 20 years ..... X X X X Extracts X X X X X X X X Extracts X X X X
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