TMI Blog2008 (9) TMI 540X X X X Extracts X X X X X X X X Extracts X X X X ..... ed an appeal before the first appellate authority which has also dismissed this appeal and as of today the matter, being T.A. No. 17 of 2000, is pending before the Tribunal. In the circumstances, we think it appropriate that the matter should go back to the Tribunal, who will decide, on the facts, as to the exact relationship between the parties in the matter of supply by the club of food and drinks to its members. - Civil Appeal No. 3950 of 2002 - - - Dated:- 25-9-2008 - KAPADIA S.H. AND SUDERSHAN REDDY B. JJ. T.L.V. Iyer, Senior Advocate (R. Nedumaran, Advocate, with him) for the respondents. S.K. Bagaria and R.L. Ramani, Senior Advocates (K.K. Mani, Ravindaran, C.K.R. Lenin Sekar, M.A. Chinnasamy, K.V. Vishwanathan, B. Ragun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Association [1970] 1 SCC 462 See [1970] 26 STC 241 (SC). which dealt with the very question, namely, "whether the supply of various preparations by each club to its members involves a transaction of sale?" It was held, based upon the definition of "sale" in the Sale of Goods Act, 1930, that there was no sale exigible to tax ". . . if there is no transfer of property from one to another . . . If the club, even though a distinct legal entity, is only acting as an agent for its members in the matter of supply of various preparations to them, no sale would be involved as the element of transfer would be completely absent." In this case the show-cause notice was issued to the club on March 10, 1993 in which it was, inter alia, alleged that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arties in the matter of supply by the club of food and drinks to its members. In other words, the principle of mutuality and agency among other circumstances shall be gone into by the Tribunal before which the said appeal is pending. At this stage it may be noted that the Department is also relying upon clause (vi) inserted in section 2(n) of the 1959 Act. All these amendments have been brought on the statute book in view of the 46th Amendment of the Constitution. We grant liberty to both sides to add by way of amendment any ground open to them in law in the pending appeal before the Tribunal. All contentions that are available to both the sides are expressly kept open and they may raise the same before the Tribunal. The Tribunal shall de ..... X X X X Extracts X X X X X X X X Extracts X X X X
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