9911796707
TMI BlogSC explains distinction between “Contract for sale of goods” and “Works contract”X X X X Extracts X X X X X X X X Extracts X X X X ..... SC explains distinction between “Contract for sale of goods” and “Works contract” - By: - Bimal jain - Service Tax - Dated:- 19-5-2014 - - Dear Professional Colleague, SC explains distinction between Contract for sale of goods and Works contract We are sharing with you an important judgement of the Hon ble Supreme Court of India, in the case of Kone Elevator India Private Limited Vs. State of Andhra Pradesh [2014 (5) TMI 265 - SUPREME COURT] on following issue: Issue: Whether supply, erection, installation and commissioning of lift at customer's premises constitute Contract for sale of goods or Works contract ? Facts Background: Kone Elevator India Private Limited ( the Petitioner or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessee ) is engaged in the manufacture, supply and installation of lifts involving civil construction. For the Assessment Year 1995-96, the Hon ble Sales Tax Appellate Tribunal, Andhra Pradesh ( the Tribunal ), considering the case of the Petitioner, opined that the nature of work is a Works contract , for the erection and commissioning of lift cannot be treated as Sale . On a revision being filed, the Hon ble High Court of Andhra Pradesh ( the Hon ble HC ) affirmed the view of the Tribunal and dismissed the revision filed by the Revenue. Grieved by the decision of the Hon ble HC, the State of Andhra Pradesh preferred Special Leave Petition ( SLP ) to the Hon ble Supreme Court of India wherein leave was granted and by judgm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent dated February 17, 2005 in State of A.P. Vs. Kone Elevators (India) Ltd. [2005 (2) TMI 519 - SUPREME COURT OF INDIA] , the view of the High Court was overruled. The three Judge Bench of the Hon ble Supreme Court applied the Dominant nature test and finally ruled that the assessee carries on business of selling lifts and elevators and the major component of the end product is the material consumed in producing the lift to be delivered and the skill/ labour employed for converting the main components into the end product are incidentally used. Therefore, the delivery of the end product by the assessee has to be constituted as a Sale and not a Works contract . After the pronouncement in the said case, the State Government cal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... led upon the Petitioner to submit returns treating the transaction as sale. Being aggrieved by the aforesaid order of the three Judge Bench of the Hon ble Supreme Court, the Petitioner preferred a petition before the Hon ble Supreme Court of India under Article 32 of the Constitution. It was assiduously urged by the Petitioner that the predominant intention test was no longer relevant after the decision of the Hon ble Supreme Court of India in Bharat Sanchar Nigam Ltd. and another Vs. Union of India and others [2006 (3) TMI 1 - Supreme court] , which has been further explained in Larsen and Toubro Limited and another Vs. State of Karnataka and another [2013 (9) TMI 853 - SUPREME COURT] . Hence, supply and installation of lift can ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not be treated to be a contract for Sale. It was further argued that a lift comprised of components or parts (goods) like lift car, motors, ropes, rails, etc., and each of them had its own identity prior to installation and they are assembled/ installed to create the working mechanism called lift. Thus, the installation of these components/ parts with immense skill is rendition of service, for without installation in the building, there was no lift. Held: It is held by the five Judge Constitution Bench of the Hon ble Supreme Court of India that four concepts have emerged from various SC judgments, which are: The Works contract is an indivisible contract but, by legal fiction, is divided into two parts, one for sale of goods ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , and the other for supply of labour and services; The concept of Dominant nature test or for that matter, the Degree of intention test or Overwhelming component test for treating a contract as a Works contract is not applicable; The term Works contract as used in Clause (29A) of Article 366 of the Constitution takes in its sweep all genre of Works contract and is not to be narrowly construed to cover one species of contract to provide for labour and service alone; and Once the characteristics of Works contract are met with in a contract entered into between the parties, any additional obligation incorporated in the contract would not change the nature of the contract. Dominant nature test or overwhelm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing component test or the degrees of labour and service test are really not applicable . If the contract is a composite one which falls under the definition of Works contracts as engrafted under clause (29A)(b) of Article 366 of the Constitution , the incidental part as regards labour and service pales into total insignificance for the purpose of determining the nature of the contract. The conclusion of the three Judge Bench being based on the bedrock of incidental service for delivery, does not correctly lay down the law, for the contract itself profoundly speaks of obligation to supply goods and materials as well as installation of the lift which obviously conveys performance of labour and service, satisfying the fundamental char ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... acteristics of Works contract . Therefore, five Judge Constitution Bench of the Hon ble Supreme Court of India overruled the judgement of three Judge Bench and allowed the writ petition filed by the Petitioner. Overruling of 2005 judgment given by three Judge Bench of the Hon ble Supreme Court of India by five Judge Constitution Bench changing the classification of contracts for supply, erection, installation and commissioning of elevators from Contract of sale of goods to Works contract , will impact the presently ongoing matters of litigation on the concerned issue. Hope the information will assist you in your Professional endeavours. In case of any query/ information, please do not hesitate to write back to us. Thanks ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Best Regards. Bimal Jain FCA, FCS, LLB, B.Com (Hons) Flat No. 34B, Ground Floor, Pocket - 1, Mayur Vihar, Phase - I, Delhi 110091, India Desktel: +91-11-22757595/ 42427056 Mobile: +91 9810604563 Email: bimaljain at the rate of hotmail.com Web: www.a2ztaxcorp.com Disclaimer: The contents of this document are solely for informational purpose. It does not constitute professional advice or recommendation of firm. Neither the authors nor firm and its affiliates accepts any liabilities for any loss or damage of any kind arising out of any information in this document nor for any actions taken in reliance thereon. Readers are advised to consult the professional for understanding applicability of this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... newsletter in the respective scenarios. While due care has been taken in preparing this document, the existence of mistakes and omissions herein is not ruled out. No part of this document should be distributed or copied (except for personal, non-commercial use) without our written permission. - - Scholarly articles for knowledge sharing authors experts professionals Tax Management India - taxmanagementindia - taxmanagement - taxmanagementindia.com - TMI - TaxTMI - TMITax ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
