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TMI Blog2018 (9) TMI 806X X X X Extracts X X X X X X X X Extracts X X X X ..... eliance has been placed upon a Division Bench judgment of this Court in CWP Nos.1922 to 1924 of 2012 titled as 'M/s Fortis Health Care Limited and another vs. State of Punjab and others' in which identical issue has been decided and this Court has opined that the medicines in the health care services provided to the indoor patients is not taxable as the amount charged cannot be bifurcated to cull out amount of sale of medicines, even if the amount is separately charged for pharmacy, laboratory services, implants services provided by the doctors as it is a composite medical service provided. On the other hand, learned counsel for the State while not disputing the judgment referred to this Court in M/s Fortis Health Care Limited' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pectful agreement with the opinion recorded by the Jharkhand High Court and the Allahabad High Court and find no reason to record a contrary opinion or to hold that the supply of medicines, drugs, stents, implants etc. to a patient during a medical procedure inhers any element of sale, much less sets out the ingredients of a 'sale'. The power to impose sales tax/VAT flows from Entry 54 of List II of Schedile VII and Article 366(29-A) of the Constitution, the latter assigning the status of a deemed sale to transactions where one or the other element of sale is missing, but where the element of sale is altogether missing and the transaction does not fall within any of the clauses of Article 366(29-A) of the Constitution of India, a St ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d under any provision of the Constitution much less the definition of goods, sale or dealer, to severe the contract and construe the supply of drugs, medicines, stents, implants etc. as a severable part of the contract and, therefore, exigible to VAT, as a sale. The situation would obviously be different if these articles are supplied from the pharmacy of a hospital. A deeming fiction, must be rational and not farcical. The dominant purpose of a hospital is to provide medical treatment and if during a medical procedure it is required to provide medicines, stents, implants etc., it cannot by a deeming fiction be held to be a "sale". A patient may have a choice as to the quality of implant/stent but even that choice is confined to the suit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by disregarding the definition of sale in these statutes which are essentially identical to the definition of sale of the present statute. We therefore, have no hesitation in holding that medical procedures/services offered by the petitioners are a service. The supply of drugs, medicines, implant, stents, valves and other implants are integral to a medical services/procedures and cannot be severed to infer a sale as defined under the Punjab or the Haryana Act and therefore, are not exigible to value added tax." The contentions raised by learned counsel for the State regarding judgment of Kerala High Court is totally misconceived for the reason that in M/s Fortis Health Care Limited's case (supra), Division Bench judgment of this ..... X X X X Extracts X X X X X X X X Extracts X X X X
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