9911796707
TMI Blog2012 (3) TMI 409X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessing Officer by assessing the tax for the assessment year 1994-95, 1995-96 and 1997-98. Learned counsel for the petitioner relied upon the order passed in Revision Petitions; JR-1201, JR-1202, JR-1203 and JR-1204 referred in the petitioner's own case, which is dated 25th June, 2002, wherein the Revisional Authority relying upon the judgment of the Madras High Court delivered in the case of National Small Industries Corporation Ltd. Vs. State of Tamil Nadu (1994)92 STC 1 (SC) {HC, Madras} and after considering the various other judgments including K.L. Johar Co. Vs. Deputy Commercial Tax Officer, Coimbatore-III (1965) 16 STC 213 (SC) took the above view after considering the explanation given in Section 2 (U), which defines the same for the purpose of taxing under the Bihar Finance Act, 1981. The appellant-petitioner, therefore preferred these writ petitions obviously for the reason that the Tribunal has already taken a decision in the subject matter and, therefore, according to petitioner no useful purpose would be served by preferring revision before the Revisional Authority i.e., Jharkhand Commercial Taxes Tribunal. 3. Be that as it may be, the alternate remedy is no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shall include any amount charged by the dealer for anything done in respect of the goods at the time of, or before delivery thereof to the buyer. Therefore, any amount charged by the seller from the buyer subsequent to the delivery of goods, irrespective of fact whether ownership has been transferred or not, cannot be treated to be the sale price. Learned counsel for the writ petitioner further vehemently submitted that subsequent to the decision of the Madras High Court as well as the decision rendered in the case of Jay Bharat Credit And Investment Co. Ltd the Hon'ble Supreme Court has considered the issue of hire purchase and its component in detail in the case of Association of Leasing and Financial Companies Vs. Union of India (2010) 35 VST 549 (SC) wherein it has been categorically held that the hire-purchase agreement contains two components, one must be price on goods and another is the service charge. In that case, while dealing with the issue of service tax, it has been specifically held that there cannot be double tax in hire-purchase agreement; one by the State Government and another by the Central Government because of the plain and simple reason that the sale pric ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 39;ble Supreme Court and it has been held that tax can be levied only on the actual sale price. Learned counsel for the petitioner further submitted that in the same way here in this case it is not disputed that the sale price of the commodity is 'X' and 'Y' only is the component of the interest and that component of interest is only because of the me facility or services provided by the writ petitioner to the customer. In this view of the fact, the tax can be levied on the goods which is also clear from the definition of the sale price. It is a tax on delivery the goods on hire purchase under Section 2(t) of the Act of 1981. 7. Learned counsel for the State submitted that the issue is no longer res integra in view of the judgment delivered in the case of Jay Bharat Credit And Investment Corporation Ltd. Vs. State of Tamil Nadu (Supra) and submitted that definition clause which has been substituted after 46 th Constitution Amendment and by including Clause (29A) in Article 366 of the Constitution of India, has been purposefully added in the Constitution so as to allow the tax specifically on the transaction of hire-purchase. In view of this position, after 46 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Constitution of India and insertion of Clause (29-A) under Article 366, it provided the same provision of tax i.e., upon the tax on event of the hire-purchase. Therefore, the provisions of the Act of 1981 which is under consideration which may not have been valid before the amendment of the Constitution in the year 1983 is now valid and, therefore, the case of Jay Bharat Credit And Investment Co. Ltd fully applies, so far as this aspect is concerned. 9. It will be appropriate to quote the definition of sale, which is as under: Under the Bengal Finance (Sales Tax) Act, 1941 as extended to Delhi. After 1-10-1959: 2(g) 'Sale' with its grammatical variations and cognate expressions, means any transfer of property in goods by one person to another for cash or for deferred payment or for any other valuable consideration, and includes a transfer of goods on hire-purchase or other system of payment by installments, but does not include a mortgage or hypothecation of or a charge or pledge on goods. Explanation:-- A sale or purchase of goods shall be deemed to take place inside the Union Territory of Delhi if the goods are within that territory-- (i) in the case of s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of a contract; (ii) transfer of property in goods (whether as goods or in some other form) involved in the execution of a works contract; (iii) delivery of goods on hire-purchase or any system of payment by instalments; (iv) transfer of the right to use any goods for any purpose (whether or not for a specified period); (v) supply of goods made by a society, trust, club or association whether incorporated or not, to its members or otherwise; (vi) supply by way of or as part of any service or in any other manner, whatsoever, of goods being food or any drink whether or not intoxicating; 13. Definition of sale price is given under Section 2 (u), which is as under: (u) sale price means the amount payable to a dealer as valuable consideration in respect of the sale or supply of goods; Explanation I: Sale price shall include any amount charged by the dealer for anything done in respect of the goods at the time of, or before delivery thereof to the buyer Explanation II: Sale price shall not include the cash discount allowed by the dealer according to the ordinary trade practice if shown separately. It shall also not include the cost for transport of the goods fr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hire-purchase only the commodity in vehicle is transferred to the hirer and same is the position under the Delhi Act of 1975 where words has been used transfer of goods on hire-purchase as well. As such the position remains same where the words has been used delivery of goods on hire-purchase . The Hon'ble Supreme Court in the case of Jay Bharat Credit And Investment Co. Ltd. Vs. Commissioner of Sales Tax has held that in the case of transfer of goods on hire-purchase whatever amount is paid/payable to the dealer on such a transfer would be included within the meaning of the expression sale price and the said meaning of 'sale price' fully applies to the Act of 1981. 18. Whether any material difference has been made by the judgment by the Hon'ble Supreme Court delivered in the case of Association of Leasing and Financial Companies Vs. Union of India(supra)? In Association of Leasing and Financial Companies Vs. Union of India (supra), the issue was with respect to the levy of service tax and the controversy was pertaining to the validity of Section 65 (12) and Section 65(105)(zm) of the Finance Act (as amended). In that case, it was held that the service tax i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e because it is specifically excluded by specific language by providing that the charge incurred by the seller up-to certain time only can be included in the sale price. However, we do not find any force in the submission for the reason that under Section 2(t) of the Act of 1981, sale price has been defined and hire-purchase has been included in the definition of sale. Delivery of goods or transfer of goods without there being any transfer of title is an essential ingredient of the hire-purchase agreement without which it may amount to direct sale coming out from the purview of the hire-purchase agreement itself. Therefore, once any one gets goods under hire- purchase agreement, on deferred payment system then that is deemed sale. The sale price has been defined under Section 2(u) and it clearly declares that sale price means the amount payable to the dealer as valuable consideration in respect of sale or supply of goods. Section 2 (u) in unequivocal terms declares that amount payable to the dealer as valuable consideration in respect of the sale if read with sub- section 2(t) with respect to hire-purchase means sale price. The Explanation (I) in clause 2(u) says that sale price in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r sub-section (1) the State Government specifies in respect of any goods, class or description of goods that the sales tax shall be levied at more than one point or on all the points, the amount of sales tax paid at each preceding stage of sale shall be adjusted against the amount of tax payable at each subsequent stage of sale in the prescribed manner. After providing sub-section 1,2 and 3 of Section 11, Section 11(4), which is sought to be invoked, provides as under: 11 (4): Where no specification is made in respect of any goods, class or description of goods under sub-section (1), the sales tax shall be levied at the point of sale by a registered dealer to a person other than a registered dealer. Each preceding sale by a registered dealer to another registered dealer in whose registration certificate such goods or class or description of goods are specified as being required for re-sale by him shall not be levied to tax, if the selling dealer produces a declaration form the buying dealer in the prescribed form and manner to the authority prescribed under section 17. 21. For this issue at the outset, it may be stated that this issue was not raised before assessing office ..... X X X X Extracts X X X X X X X X Extracts X X X X
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