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TMI Blog2015 (4) TMI 819X X X X Extracts X X X X X X X X Extracts X X X X ..... luable consideration. - If the dealer like the assessee sends for installation of Pandal, shamiyanas, kanats, sofa, table and crockery through its employees for installation as per desire by its customers and later on the employees of the respondent-assessee brings back the aforesaid items, it will not come within the purview of sale, in my view, is not correct as it does not make any difference as to whether the customer carries the goods on his own for installation and brings back the same through its labourers/employees or otherwise. In my view, there is hardly any distinction in between the two and it is one and the same thing. Very thin line of conclusion has been drawn by the Tax Board and in my view under both propositions it would ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... passed by the Rajasthan Tax Board, Ajmer in Appeal No.528/2007/Jaipur. 2. The brief facts which can be noticed are that the respondent is carrying on business of tent decoration and is inter-alia providing tent, furniture, crockery and electric decorative items to the consumers for the use in marriage functions, conferences and other related use. 3. The respondent-assessee moved an application under section 36 of the Rajasthan Value Added Tax Act,2003 before Additional Commissioner (Law), for determining disputed questions: (i) whether an erection of pandal or shamiyana or tent including other accessories like carpet, sofa, chair, table, crockery, etc. which is essential service as a pandal or shamiyana's contractor can be treat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e same and delivers to the assessee at the business premises then it will fall within the definition of sale and is taxable under the VAT Act (iii) Since there was no exhaustive list available therefore, it was held that if the items do fall within the schedule then as per schedule V, the rate of tax would be payable @ 12.5% (iv) finally it concluded that answer to question no. 1 does not fall within the definition of sale but answer to question No.2 falls within the definition of sale. 6. Instant petition was admitted on 02.09.2014 on the following question of law: Whether the renting out of tents, cutlery, furnitures and carpets by a tent house is covered by the definition of sale in Section 2(35)(IV) of the Rajasthan Value Add ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d returns back or the respondent-assessee sends for installation through its employees, does not make any difference as ultimately even the customers would be getting the same installed through someone. He contended that by and large, no customer is being permitted to carry the items and it is only under the control and supervision and the direction of the respondent-assessee that the items are being sent and are installed/placed according to the desire of the customers. He relied upon the judgment rendered in the case of Agarwal Brothers Vs. State of Haryana Another reported in AIR 1999 SC 2868. 8. No-one appeared on behalf of the respondent despite notice having been served on the respondent. 9. I have considered the arguments ad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ordingly; 11. On perusal of the above and specially sub clause (iv) of sec 2(35) of RVAT Act, it prescribes that even transfer of the right to use goods for any purpose (whether or not for a specified period) for cash, deferred payment or other valuable consideration; can fall within the definition of sale. It also prescribes that transfer of property and goods could be from one person to another even for cash, deferred payment or other valuable consideration. The court is required to consider plain and simple meaning of sale as contained in section 2(35)(iv). In my view, the Tax Board on the one hand in reply to question no.2 has expressed that if the customer carries tent, shamiyana, carpet, sofa, table chair and crockery etc. from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ondent assessee to customers through its employees then it will not come within the ambit and definition of sale. The definition of sale is wide enough. It covers even goods transferred on short duration. The Honble Apex Court in the case of Agarwal Brothers (supra) considering the case where shuttering material was provided by the dealer for use in construction of building for a limited period was held liable to sales tax as during intervening period it remained in the possession of builders, fell within the definition of sale as there was transfer of goods. It would be appropriate to quote paras 5 and 6 of the aforesaid judgment which reads ad infra: The said Act defines 'sale' to mean the transfer of property in goods for c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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