TMI Blog2015 (10) TMI 854X X X X Extracts X X X X X X X X Extracts X X X X ..... Therefore, the said contention cannot be accepted. On the distinction sought to be drawn to the decision of the Supreme Court in Federal Bank, it should be pointed out that though the Supreme Court was concerned in that case with the exercise of a statutory right of sale, we do not think that the exercise of a contractual right to bring a hypothecated property to sale, could be excluded on that account. Explanation III covers even the sale of unclaimed goods. If sale of unclaimed goods can be included within the purview of Explanation III, the distinction sought to be drawn between a statutory right of sale and a contractual right of sale, cannot stand. Hence, we are of the considered view that the question of law has to be answered against the assessee. - Decided against assessee. - Tax Case (Revision) Nos. 64 to 67 of 2015 - - - Dated:- 12-8-2015 - V. Ramasubramanian And T. Mathivanan, JJ. For the Petitioner : Mr Joseph Markos, SC for Mr C Saravanan For the Respondent : Mr A N R Jayapratap, AGP (T) ORDER (Order of the Court was made by V. Ramasubramanian, J) These revisions are filed by the HDFC Bank Limited, under Section 60(1) of the Tamil Nadu Value A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... earned Senior Counsel appearing for the bank that the petitioner would not come within the expression of the term 'dealer' under Section 2(15). According to the learned Senior Counsel, the bank does not really confiscate the hypothecated vehicle and bring it to sale. By securing necessary transfer forms in TM 29 and TM 30 and bringing the hypothecated vehicles to sale, a bank merely facilitates the sale of the hypothedated vehicles. Further according to the learned Senior Counsel, the sale by the bank of the hypothecated vehicles, was only in the capacity of being an agent of the owner of the vehicle. By itself, the bank is not competent to transfer title in the vehicle to the purchaser. Therefore, the learned Senior Counsel contends that the bank would not come within the definition of the expression 'dealer'. 8. In so far as the decision of the Supreme Court in Federal Bank is concerned, the contention of the learned Senior Counsel is that a pledge stands on a completely different footing from hypothecation. In respect of a pledge, there is a statutory right conferred upon the pledgee under Section 176 of the Contract Act to sell. Therefore, the learned Senior ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... III to Section 2(15) reads as follows : (15) dealer means any person who carries on the business of buying, selling, supplying or distributing goods, directly or otherwise, whether for cash, or for deferred payment, or for commission, remuneration or other valuable consideration, and includes-- (i) a local authority, company, Hindu undivided family, firm or other association of persons which carries on such business; (ii) a casual trader; (iii) a factor, a broker, a commission agent or arhati, a del credere agent or an auctioneer, or any other mercantile agent by whatever name called, and whether of the same description as hereinbefore or not, who carries on the business of buying, selling, supplying or distributing goods on behalf of any principal, or through whom the goods are bought, sold, supplied or distributed; (iv) every local branch of a firm or company situated outside the State; (v) a person engaged in the business of transfer otherwise than in pursuance of a contract of property in any goods for cash, deferred payment or other valuable consideration; (vi) a person engaged in the business of transfer of property in goods (whether as goo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al corporations as well as the banks are deemed to be dealers, whenever they dispose of goods under certain contingencies. The contingencies indicated in Explanation III are : (i) disposal of unclaimed goods (ii) disposal of confiscated goods (iii) disposal of unserviceable goods (iv) disposal of scrap surplus, old or obsolete goods and (v) disposal of discarded materials or waste products. 16. All the above sales whether by way of auction or otherwise, directly or through an agent, either for cash or for deferred payment or for any other valuable consideration, are covered by Explanation III. In other words, Explanation III to Section 2(15) is so exhaustive. 17. The contention that the bank does not become the owner of the property and that but for the forms TM 29 and TM30 handed over by the owners, the banks cannot even sell the property, may be technically right. But, Explanation III includes even the disposal of goods that are unclaimed. In respect of unclaimed goods, the seller does not claim ownership. But, he exercises a right to dispose of the goods. If Explanation III covers the sale of even unclaimed goods, the contention that the seller mus ..... X X X X Extracts X X X X X X X X Extracts X X X X
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