9911796707
TMI Blog1986 (6) TMI 239X X X X Extracts X X X X X X X X Extracts X X X X ..... sthan Spinning and Weaving Mills Ltd., is a public limited company and owns two textile units, (i) one at Gulabpura (Kharigram) (District Bhilwara) and (ii) another at Bhilwara. Both the said textile units are owned by one and the same owner, i.e., the petitioner-company. The registered office of the petitioner-company is situated at 40-41, Community Centre, New Friends Colony, New Delhi. It is submitted that the ownership of both the said textile units, i.e., M/s. Rajasthan Spinning & Weaving Mills Ltd., Bhilwara, as well as M/s. Rajasthan Spinning & Weaving Mills Ltd., Gulabpura (Kharigram) (District Bhilwara), vest in one and the same person, i.e., the petitioner company, and though the two units owned by the petitioner are situated at two different places in the Rajasthan in the same District Bhilwara. Both the units have been registered under the Act of 1954. Every dealer is required to pay tax under the Act of 1954 and is required to register himself in the prescribed manner. Both the units are also registered under the Central Sales Tax Act also. M/s. Rajasthan Spinning and Weaving Mills Ltd., Bhilwara, has been registered under R.S.T. No. 189/62 and under C.S.T. No. BHL 70 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n under the Act of 1954 has been placed on record as exhibit R/1. Similarly the petitioner applied for registration under section 7(1) and 7(2) of the Central Sales Tax Act in which it has been clearly stated that the principal place of business in Rajasthan is at Bhilwara. It has also been mentioned that it has no other place of business or warehouse in the State of Rajasthan. Copy of the application has been placed on record as exhibit R/2. Similarly regarding Gulabpura unit documents have been placed on record as exhibit R/3 and exhibit R/4 to substantiate this submission. Similarly both the units have independently availed the benefit of section 5(c) of the Act of 1954 and both the units have obtained copies of declaration under rule 25C from time to time and used them. It has been further submitted that in order to accelerate industrial development under the provisions of section 5CC of the Act of 1954 the State Government had exempted from payment of tax for a period of five years from the date of the commissioning of the unit from 1st March, 1970, to all registered dealers. This concession was not available to units using machinery not already used or acquired for use in any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ds shall include such transfer made in the course of the execution of a contract. Explanation-II.-A transfer of property in goods shall be deemed to have been made within the State if it fulfils the requirements of sub-section (2) of section 4 of the Central Sales Tax Act, 1956 (Central Act 74 of 1956)." *(by one person to another) This definition was amended by the amending Act 18 of 1960 with effect from 1st April, 1960. By this amendment the words "made within the State" along with the words "by one person to another" was omitted by this Act. He has also invited my attention to the definition of "sale" as given in the Sale of Goods Act, which reads as under: "4. Sale and agreement to sell.-(1) A contract of sale of goods is a contract whereby the seller transfers or agrees to transfer the property in goods to the buyer for a price. There may be a contract of sale between one part-owner and another. (2) A contract of sale may be absolute or conditional. (3) where under a contract of sale the property in the goods is transferred from the seller to the buyer, the contract is called a sale, but where the transfer of the property in the goods is to take place at a future time or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t has discussed in detail in Vishnu Agencies case [1978] 42 STC 31 at 46 (SC); AIR 1978 SC 449 in paragraph 30, which read as under: "30. The view expressed in Gannon Dunkerley [1958] 9 STC 353 (SC); AIR 1958 SC 560 that the words 'sale of goods' in entry 48 must be interpreted in the sense which they bear in the Sale of Goods Act, 1930, and that the meaning of those words should not be left to fluctuate with the definition of 'sale' in laws relating to sales of goods which might be in force for the time being may, with respect, bear further consideration but that may have to await a more suitable occasion. It will then be necessary to examine whether the words 'sale of goods' which occur in entry 48 should not be construed so as to extend the competence of the legislature to enacting laws in respect of matters which might be unknown in 1935 when the Government of India Act was passed but which may have come into existence later, as a result of a social and economic evolution. In Attorney-General v. Edison Telephone Company of London (1880) LR 6 QBD 244 a question arose whether the Edison Telephone Company, London, infringed by installation of telephones, the exclusive privilege o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it is necessary that there should be an agreement between the parties. The sale is necessarily a consensual transaction and if the parties have no volition or option to bargain, there can be no sale. Keeping in view the proposition which has been laid down by this celebrated judgment and after having been considered the earlier celebrated judgment given by their Lordships of the Supreme Court in the case of Gannon Dunkerley [1958] 9 STC 353 (SC); AIR 1958 SC 560, the question is that definition of the Rajasthan Sales Tax Act can be said to be violative of articles 19(1)(g), 301 and 304 of the Constitution, my answer to this question is in negative. The construction which the learned counsel wants to put that this definition of "sale" is more wider than the definition of "sale" as given in the Sale of Goods Act it is contrary to the common parlance. It is no doubt that so far as sale is concerned, there has to be a consensual transaction between the two parties and if the parties have no volition or option to bargain then such transaction will not amount to sale. A bare reading of section 2(o) clearly shows that the Rajasthan Act or the Amendment Act has not in any way transgress t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... person transferring goods to himself and this cannot be amount to sale. Similarly in the case of U.P. State Cement Corporation [1979] 43 STC 476 (All), the cement factory owned by the State Government, supplied cement for construction of another newly established cement factory, also owned by the State Government, such supply did not amount to a sale under section 2(h) of the U.P. Act and was not liable to sales tax. In the case of Indokem Private Limited [1975] 35 STC 432 (Bom), it was held that the goods purchased by a head office after paying tax and transfer of goods to branch and sale by branch, it was held that the branch office is not a registered dealer and provisions regarding issue of separate registration certificate for branch office were only an administrative convenience, therefore head office transfers the goods to the branch office was not held to be a sale in terms of the Bombay Sales Tax Act. In these cases each case had its peculiar feature and the ratio laid down that there could not be a sale of goods to oneself. So far as present cases are concerned, S.B. Civil Writ Petition No. 402 of 1985, it has been filed directly against the notice. Likewise, S.B. Civil ..... X X X X Extracts X X X X X X X X Extracts X X X X
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