TMI Blog2010 (4) TMI 972X X X X Extracts X X X X X X X X Extracts X X X X ..... tands modified in exclusion of the sums included to the G.T in respect of charges on road tax, insurance charges and registration cost which are held not to be included in the "sale price" within the meaning of section 2(31) of the WBST Act, 1994. - - - - - Dated:- 23-4-2010 - PRADIPTA RAY AND DATTA CHAUDHURI R.K. AND DIPAK CHAKRABORTI, JJ. R.K. DATTA CHAUDHURI (Judicial Member). In this application under section 8 of the West Bengal Taxation Tribunal Act, 1987, the petitioner, M/s. Auto Hitech (Pvt.) Ltd., a motor vehicle dealer, challenges the order passed by Sri M.C. Mukhopadhyay, Special Commissioner, Commercial Taxes, West Bengal on January 20, 2009 confirming the appellate order passed by Shri C. Singh, the Additional Commissioner of Commercial Taxes, West Bengal on March 28, 2008 in the Appeal Case No. 125/CD/ Addl. CCT/2006-07 affirming inclusion of payment of insurance premium, registration cost and road tax by the dealer to the sale price in the assessment order passed on 21st June, 2006 in respect of fourth quarter ending March 31, 2004 under section 45 of the West Bengal Sales Tax Act, 1994 by Shri R.N. Mukherjee, Deputy Commissioner of Commercial Taxes, Corpo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... purchases of cars were made mostly through financiers, we cannot in the absence of such agreement papers before us decipher what were the terms of the sale transactions. The honourable Supreme Court in a decision in Commissioner of Sales Tax, U.P. v. Rai Bharat Das Bros. reported in [1988] 71 STC 277, held that the sale price means any such charge for anything done by the dealer in respect of the goods at the time or before delivery thereof. In that case at the request of the customer, sand in gunny bag was delivered and it was held that the packing charges formed part of sale price. That fell within 'any sum charged for anything done, etc.'. The ruling in Hindustan Sugar Mills Ltd. v. State of Rajasthan [1979] 43 STC 13 (SC) rendered by the honourable Supreme Court referred to certain facts which are not applicable here. There Government control order was paramount in deciding that railway freight charges should be part of sale price though mentioned as 'free rail destination railway station'. In Commissioner of Sales Tax v. Premier Automobiles Ltd. [1985] 59 STC 147 (Bom), it was held that service pool charge calculated by the assessee for its distributors was n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d ordinarily include all of them in the price at which he would sell his goods. But if the sale price is fixed statutorily then the only obligation of the purchaser under the agreement would be to pay that price only and no other amount can be included in the said price even if the same is paid by the purchaser to the seller. So, decision on true nature of the transaction requires reading of the entire fact-situation concerning the agreement, trade practice, etc. In the absence of any agreement it appears that the petitionerdealer took upon the responsibility to arrange for getting registration, tax token and insurance of the vehicles done at the time of negotiation of the sale of the cars. From the impugned order, it appears that bill and other relevant documents were gone into by the concerned officer and he found those to be one not service relating to any postsale matter; rather it was as pre-sale agreement. The argument that the provisions of the Motor Vehicles Act and Rules are against such a decision as stressed by the learned advocate for the petitioner does not appear to carry much weight. Section 39 of the Motor Vehicles Act, 1988 containing provision of compulsory reg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... After sale in some cases, at the request of the buyers he arranged for getting the sold vehicles insured, registered with the motor vehicles authority, payment of road tax and getting the vehicles insured on behalf of the customers. The customers separately paid the said amount, against debit notes. Some customers however themselves arranged for the above. All these payments are post-sales events. Those were not part of the consideration for the sale. Unlike in the Case RN-525 of 2003 (Frostees Exports (India) Pvt. Ltd. v. A.C.C.T. [2006] 47 STA 228 (WBTT)), the petitioner collected the amount paid for registration, insurance and road tax separately and hence the decision of this case would not apply in its case. The respondents though did not file affidavit-in-opposition, contested the application appearing through learned S.R., Mr. A.K. Nath, and subsequently through learned advocate Shri Boudhayan Bhattacharyya. Mr. Bhattacharyya submitted that the insurance charges, registration charges and road tax realized by the petitioner from the purchaser were to be construed as integral parts of the sale price within the meaning of section 2(31). Section 40 of the Motor Vehicl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... istered. Section 44 of the Motor Vehicles Act provides, the registering authority shall before proceeding to register a motor vehicle or renew the certificate of registration in respect of a motor vehicle, other than a transport vehicle, require the person applying for registration of the vehicle or, as the case may be, for renewing the certificate of registration to produce the vehicle either before itself or such authority as the State Government may by order appoint in order that the registering authority may satisfy itself that the particulars contained in the application are true and that the vehicle complies with the requirements of this Act and of the rules made thereunder . Rule 47(1) of the Central Motor Vehicle Rules, 1989 provides, an application for registration of a motor vehicle shall be made in form 20 to the registering authority within a period of (seven days) from the date of taking delivery of such vehicle, excluding the period of journey and shall be accompanied by (a) sale certificate in form 21; (b) valid insurance certificate; (c) copy of the proceedings of the State Transport Authority or Transport Commissioner or such other authorities as may be prescribe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the vehicle by the owner for the purpose of registration. The provision of the Act prevails over the rule. So delivery to the owner is a pre-condition of sale. Therefore it may safely be concluded that the registration of a motor vehicle is a post-delivery event. The section 140(1) of the MV Act, 1988 provides, where death or permanent disablement of any person has resulted from an accident arising out of the use of a motor vehicle or motor vehicles, the owner of the vehicle shall, or, as the case may be, the owners of the vehicles shall, jointly and severally, be liable to pay compensation in respect of such death or disablement in accordance with the provisions of this section . The section 146(1) provides, no person shall use, except as a passenger, or cause or allow any other person to use, a motor vehicle in a public place, unless there is in force in relation to the use of the vehicle by that person or that other person, as the case may be, a policy of insurance complying with the requirements of this chapter . So, it is the liability of the owner of the motor vehicle to get the motor vehicle insured. Serial No. 37 of form 20 under rule 47 it has to be declared by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le consideration, and includes (a) any transfer, otherwise than in pursuance of a contract, of property in any goods for cash, deferred payment or other valuable consideration; (b) any delivery of goods on hire-purchase or any system of payment by instalment getting the vehicle insured and registered and payment of road tax were not pre-condition. The vehicles were at deliverable state before registration, insurance and payment of road tax. Before registration, insurance and payment of road tax the sale certificate had been issued. In the case of this Tribunal in India Potteries Limited v. Assistant Commissioner of Commercial Taxes, Taltala Charge reported in [2010] 35 VST 484 (WBTT); [2009] 54 STA 52 as cited by Mr. Bajoria, the petitioner in response to tender notice submitted offers and upon acceptance, the SEB delivered insulators. The petitioner quoted ex-work prices of the insulator. The charges for freight, insurance, excise, sales tax, etc., were quoted separately. In this case the question, inter alia, was whether freight charge was completed of and included within the agreed sale price. The judgment was based on the terms and conditions of the contract of the supply of un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he capacity of the bailee and the dealer collected the sums for the sums spent by him. Section 148 of the Indian Contract Act provides, a bailment is the delivery of goods by one person to another for some purpose, upon a contract that they shall, when the purpose is accomplished, be returned or otherwise disposed of according to the directions of the person delivering them. The person delivering the goods is called the 'bailor'. The person to whom they are delivered is called the 'bailee'. Explanation. If a person already in possession of the goods of another contracts to hold them as a bailee, he thereby becomes the bailee, and the owner becomes the bailor of such goods, although they may not have been delivered by way of bailment . Section 149 of this Act says, the delivery to the bailee may be made by doing anything which has the effect of putting the goods in the possession of the intended bailee or of any person authorized to hold them on his behalf . Section 158 of this Act says, where, by the conditions of the bailment, the goods are to be kept or to be carried, or to have work done upon them by the bailee for the bailor, and the bailee is to receive n ..... X X X X Extracts X X X X X X X X Extracts X X X X
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