TMI Blog1996 (10) TMI 450X X X X Extracts X X X X X X X X Extracts X X X X ..... cassette for two days and if he keeps it for more than two days he has to pay extra fee. The member is also liable to make good any damage or loss caused to the cassette. 2.. The first respondent issued notice to the petitioner stating that the firm would come within the definition of "dealer" given in section 2(viii) of the Kerala General Sales Tax Act, 1963 (for short "the Act") and was liable to be assessed under the Act. Petitioner filed objection to the notice. His objections were overruled and exhibits P5 and P6, assessment orders, were passed for the years 1984-85 and 1985-86. Petitioner challenges exhibits P5 and P6 orders. Petitioner alleges that he is not a dealer under the Act nor the transaction of lending cassettes to the mem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in pursuance of a contract, of property in any goods for cash, deferred payment or other valuable consideration; (b) a tax on the transfer of property in goods (whether as goods or in some other form) involved in the execution of a works contract; (c) a tax on the delivery of goods on hire-purchase or any system of payment by instalments; (d) a tax on the transfer of the right to use any goods for any purpose (whether or not for a specified period) for cash, deferred payment or other valuable consideration; (e) a tax on the supply of goods by any unincorporated association or body of persons to a member thereof for cash, deferred payment or other valuable consideration; (f) a tax on the supply, by way of or as part of any servi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... deration, but does not include a mortgage, hypothecation, charge or pledge; ................ Explanation (3B).-A transfer of right to use any goods for any purpose (whether or not for a specified period) for cash, deferred payment or other valuable consideration shall be deemed to be a sale." 4.. The question that arises for consideration is whether the petitioner would come within the meaning of "dealer" as defined in section 2(viii) of the Act and whether he should be assessed on the basis of the business conducted by him. By the extended meaning of the definition given to the words "tax on the sale or purchase of goods" by clause (29A) of article 366 of the Constitution the State can enact legislation to impose tax for transfer of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er of right to use any goods and the petitioner is liable to be assessed. 6.. As already noticed the members of the petitioner's library are given video cassettes on payment of Rs. 10 and the member can retain the cassettes for a period of 2 days and if he keeps these cassettes for more than two days he has to pay additional fee. The member has got exclusive control over the cassettes for the period during which the cassettes are in his custody. It is true that he cannot alter the recordings or cause damage to the video cassettes. Video cassettes are generally used for viewing the contents recorded therein. For the purpose of using the video cassettes there is transfer of that goods in favour of the customer. Hence, we are of the view tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ding to petitioner's counsel support the contentions raised by the petitioner. In Rashtriya Ispat Nigam Ltd. v. Commercial Tax Officer [1990] 77 STC 182 a Division Bench of the High Court of Andhra Pradesh held that lending of certain machineries to the contractor for the purpose of carrying out the work will not come within section 5-E of the Andhra Pradesh General Sales Tax Act, as there was no transfer of the right to use any goods. For the purpose of the steel project at Visakhapatnam different parts of the project work were given to various contractors. To facilitate the execution of work by the contractors with the use of sophisticated machinery, the petitioner had undertaken to supply machinery to the contractors for the purpose of b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ransfer of right to use any goods. But a number of banks challenged the notices received by them and the court held that the extended meaning of "sale" given in section 2(g)(ii) of the Bengal Finance (Sales Tax) Act, 1941 will not attract such transactions. It was held that the bank lockers were the property of the banks specially equipped and fitted out for a special purpose and let out and there was no parting with possession of the property for the purpose of earning income. Lockers were not allowed to be opened by the customer and the banks had built a strong room, installed a steel cabinet with safety lockers with double locking system and these were part of their customer service and the bank had a lien on the goods stored in the lo ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
