TMI Blog1996 (2) TMI 409X X X X Extracts X X X X X X X X Extracts X X X X ..... nt within the stipulated period, he may ask for extension and the dealer may grant the extension. In such cases, the sale obviously takes place only when the purchaser exercises the option to purchase after fully paying the agreed amount. - Civil Appeal No. 1015 of 1977, W.A. No. 98 of 1973 - - - Dated:- 6-2-1996 - JEEVAN REDDY B.P. AND MAJMUDAR S.B. JJ. P.S. Poti, Senior Advocate (Ms. Malini Poduval, Advocate, with him), for the appellant. M.T. George, for the respondents. -------------------------------------------------- ORDER This appeal is preferred against the judgment of a Full Bench of the Kerala High Court. The matter arises under the Kerala General Sales Tax Act and the relevant assessment year is 196 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Deputy Commercial Tax Officer, Coimbatore [1965] 16 STC 213, it has been held that in the matter of determining the consideration for sale, two courses are open to the Revenue, viz., (a) to take the original price of the goods and deduct the appropriate amount of depreciation out of it or (2) to take the market-value of the goods on the date of the sale. Applying the aforesaid principles, the Sales Tax Officer proposed to adopt first of the above two methods of valuation. In other words, he wanted to take the original sale price from which he proposed to deduct the amount of depreciation. But this, in turn, gave rise to another controversy, viz., rate of depreciation. The Sales Tax Officer proposed to adopt the rate of twelve per ce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rit petition holding (a) that so far as the rate of depreciation is concerned, the authority must examine the matter over again and (2) that the Sales Tax Officer was in error in treating the period of agreement as the only relevant period and in ignoring the extensions granted by the appellant. Following the decision of this Court in K.L. Johar and Co. [1965] 16 STC 213 the learned single Judge held that the sale comes about when the hirer exercises the option and not automatically at the end of the period stipulated in the agreement. He accordingly remitted the matter to the Sales Tax Officer for making the assessment in accordance with the judgment. The Revenue filed an appeal. The matter was referred to a Full Bench. On the question ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... verred by the assessee. He refused to go into that aspect because of his opinion that it was irrelevant. The material was before him. Now, that we have held that the said fact is relevant, the factual aspect becomes relevant and for that purpose we have looked into the subsequent assessment order dated July 16, 1976. If so, the basis upon which the Full Bench has held against the assessee (insofar as the question-when does the sale take place) must be held to have become untenable. Now, coming to the principle applicable in this behalf, we may reiterate the law enunciated by this Court in K.L. Johar's case [1965] 16 STC 213, viz., that coming into being of the sale is a question of fact and that it takes place when the hirer exercises the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e any material showing that the said rate was arbitrary. It has also refused to take into consideration the rate of depreciation fixed by the Income-tax Act on the ground that that is a different enactment and that the rate prescribed therein is for the purposes of that Act. Be that as it may, since the appellant has a right of appeal against assessment order, we do not wish to enter into this question. It was open to the assessee to challenge the said finding in the appeal which may have been filed by him against the order of assessment. It is made clear that in case, the assessee has not filed the appeal against the order dated July 16, 1976, he may be permitted to file such an appeal now. If the appeal against the assessment order dated ..... X X X X Extracts X X X X X X X X Extracts X X X X
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