IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.8999 of 2008 M/S STAR TENT HOUSE Versus THE STATE OF BIHAR & ORS ----------- For the Petitioner : Mr. Purnendu Singh, Advocate Mr. Rakesh Kumar Sharma, Advocate For the Respondents : Mr. Nilu Agrawal, G.A. X Mrs. Nirmala Kumari, JC to GA X ------ P R E S E N T Hon'ble the Chief Justice & Hon'ble Mr. Justice Kishore K. Mandal --------- Dated, the 14th August, 2008. The petitioner claims to be rendering service as decorators by erecting Samiyana, pandal etc. The petitioner also gives on hire chairs, crockery etc. He charges the amount from the customers, which according to it, are service charges. It is the case of the petitioner that it does not transfer possession and control of samiyana and pandal etc., and that no sale or purchase of any goods or commodity is effected and that it is not covered by the definition of `sale‟ under section 2(t) of the Bihar Finance Act, 1981 (for short „the Act, 1981‟), and, therefore, the assessment order dated 7th October, 2004 under section 17 (5) of the Act, 1981 and the ex-parte order on the review application passed on 13th September, 2006 under section 47, of the Act, 1981 are bad in law. - 2 - 2. Counsel for the petitioner, although, did not dispute that the order dated 7th October, 2004 is appealable under section 45 of the Act of 1981, but according to him, since the aforesaid activity of the petitioner is not covered by the definition of „sale‟ as provided in section 2(t), the availability of the remedy should not come in the way of the petitioner in approaching this court directly under Article 226 of the Constitution of India. In this regard, the counsel placed reliance upon a decision in the case of Paradip Port Trust Vs. Sales Tax Officer and ors. (1998) 4 Supreme Court Cases 90. 3. Counsel would contend that by erection of samiyana, pandal etc., there is no transfer of material; no sale of goods and even the customer has no right to use the material used for erection. He would, thus, submit that sales tax is not exigible on samiyana pandal etc., which only amount to provide service to the customers. In support of his contention, he placed reliance upon the following cases: Rungta Projects Limited & Anr. Vs. The State of Bihar & Ors. 1997 (2) PLJR 893, State of A.P. and anr. Vs. Rashtriya Ispat Nigam Ltd. (2002) 3 Supreme Court Cases 314 and Modern Decorators Vs. Commercial Tax Officer, Maniktola and ors. 1990 (77) STC 470 (a decision of West Bengal Taxation Tribunal.) 4. Bihar Finance Act came into effect on 20th April, 1981. The Act was enacted to make a consolidated law - 3 - for levy of tax on sale and purchase in Bihar. Section 2 gives definition of various expressions including the „goods‟ and „sale‟. 5. Section 2 (R) defines „goods‟ as thus: “2(h) “goods “ means all kinds of movable property, including livestock, and all materials, commodities and articles (as such or in some other form) but excluding electricity, newspapers, actionable claims, stocks, shares or securities; Explanation. I- Materials, commodities and articles attached to or forming part of an immovable property which are agreed to be severed under the contract of sale shall be deemed to be goods within the meaning of this clause. Explanation II- Materials, commodities and articles sold or supplied as such or in some other form in execution of works contract shall be deemed to be goods within the meaning of this clause;” 6. Section 2(t) defines „sale‟ as follows: “2(t) “Sale” means any transfer of property in goods for cash or deferred payment or other valuable consideration but does not include a mortgage or hypothecation of or a charge or pledge on goods, and includes.- (i) transfer of property in any goods, otherwise than in pursuance of a contract; (ii) transfer of property in goods (whether as goods or in some other form) involved in the - 4 - execution of a works contract; (iii) delivery of goods on hire purchase or any system of payment by instalments; (iv) transfer of the right to use any goods for any purpose (whether or not for a specified period) (v) supply of goods made by a society trust, club or association, whether incorporated or not, to its members or otherwise; (vi) supply by way of or as part of any service or in any other manner, whatsoever, of goods being food or any drink whether or not intoxicating; and such transfer, delivery or supply of any goods shall be deemed to be a sale of those goods by the person making the transfer, delivery or supply, and all grammatical variations and cognate expression shall be construed accordingly; and “purchase” means such acquisition of property in goods or purchase of those goods by the person to whom such transfer, delivery or supply is made. Explanation I.- A transfer or acquisition of goods on hire purchase or under any other system in which payment of valuable consideration is made by instalments, shall, notwithstanding the fact that the seller retains the title in the goods as a security for the payment of the valuable consideration or for any other reasons, be deemed to be a sale or purchase. Explanation II.- Notwithstanding anything contained in any law for the time being in force, two independent purchases or sales shall, for the purpose of this part, be deemed to have taken place- (a) when the goods are transferred from - 5 - principal to his selling agent and from the selling agent to the purchaser, or (b) when the goods are transferred from the seller to a buying agent and from the buying agent to his principal, if the agent is found- (i) to have sold the goods at one rate and to have passed on the sale price to his principal at another rate, or (ii) to have purchased the goods at one rate and to have passed them on to his principal at another rate, or (iii)not to have accounted to his principal for the entire collections or deductions made by him in the sales or purchases effected by him or on behalf of his principal, or (iv) to have acted for a fictitious or non-existent principal” 7. That the definition of „goods‟ and „sale‟ provided in the Act, 1981 overrides the definition of these expressions in other enactments and the General Clauses Act is beyond doubt. As a matter of law, by giving definition of these expressions in the Act, even the ordinary meaning of these expressions get overriding effect for the purposes of the Act. 8. While justifying the petitioner‟s assessment under section 17(5) of the Act, 1981, in the counter affidavit of respondent nos. 3 and 4, reliance is placed on Section 2 (t) (iv) whereby transfer of the right to use any goods for any purpose (whether or not for specified period) amounts to `sale‟ for the - 6 - purposes of the Act, 1981. 9. It is relevant to refer here Article 366 (29-A) of the Constitution of India which was inserted by the Constitution (Forty-sixth Amendment) Act, 1982. By this amendment, expression “tax on the sale or purchase of goods” has been defined. Article 366 (29-A) reads thus: 29-A “tax on the sale or purchase of goods” includes- (a) a tax on the transfer, otherwise than 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 service or in any other manner whatsoever, of goods, being food or any other article for human consumption or any drink (whether or not intoxicating), where such supply or service, is for cash, deferred payment or other valuable consideration, and such transfer, delivery or supply of any goods shall be deemed to be a sale of those goods by the person making the transfer, delivery or supply and a purchase of those goods by the person to whom such transfer, delivery or supply is made;] 10. Article 366 (29-A)(d) of the Constitution of India came up for consideration before three Judge bench of the Supreme Court recently in the case of Bharat Sanchar Nigam - 7 - Limited Vs. Union of India (2006) 1 Supreme Court Case 1. The Supreme Court exhaustively considered the said provision and has referred to good number of its previous decisions including the cases viz., – (i) State of Madras v. Gannon Dunkerley & Co. (Madras) Ltd. AIR 1958 SC 560; (ii) Builders‟ Assn. of India Vs. Union of India (1989) 2 Supreme Court Cases 645; (iii) Rainbow Colour Lab V. State of M.P. (2000) 2 Supreme Court Case 385; (iv) Tata Consultancy Services V State of A.P. (2005) 1 Supreme Court Cases 308 and (v) 20th Century Finance Corporation Ltd. Vs. State of Maharashtra (2000) 6 Supreme Court Cases 12. 11. Paragraphs 41, 73 and 75 of the said judgment may be beneficially reproduced by us – 41. Sub-clause (a) covers a situation where the consensual element is lacking. This normally takes place in an involuntary sale. Sub-clause (b) covers cases relating to works contracts. This was the particular fact situation which the Court was faced with in Gannon Dunkerley and which the Court had held was not a sale. The effect in law of a transfer of property in goods involved in the execution of the works contract was by this amendment deemed to be a sale. To that extent the decision in Gannon Dunkerley was directly overcome. Sub-Clause (c) deals with hire- purchase where the title to the goods is not transferred. Yet by fiction of law, it is treated as a sale. Similarly the title to the goods under sub- clause (d) remains with the transferor who only transfers the right to use the goods to the purchaser. In other works, contrary to A.V. Meiyappan decision a lease of a negative print of a picture would be a sale. Sub-clause (e) covers cases which in law may not have amounted to sale because the member of an incorporated association would have in a sense begun as both - 8 - the supplier and the recipient of the supply of goods. Now such transactions are deemed sales. Sub-clause (f) pertains to contracts which had been held not to amount to sale in State of Punjab V. Associated Hotels of India Ltd. That decision has by this clause been effectively legislatively invalidated. 73:With respect, the decision in 20th Century Finance Corpn. Ltd. V. State of Maharashtra cannot be cited as authority for the proposition that delivery of possession of the goods is not a necessary concomitant for completing a transaction of sale for the purposes of Article 366 (29-A)(d) of the Constitution. In that decision the Court had to determine where the taxable event for the purposes of sales tax took place in the context of sub-clause (d) of Article 366 (29-A). Some States had levied tax on the transfer of the right to use goods on the location of goods at the time of their use irrespective of the place where the agreement for such transfer of right to use such goods was made. Other States levied tax upon delivery of the goods in the State pursuant to agreement of transfer while some other States levied tax on deemed sales on the premise that the agreement for transfer of the right to use had been executed within that State (vide para 2 of the judgment as reported.). This Court upheld the third view, namely, merely that the transfer of the right to use took place where the agreements were executed. In these circumstances the Court said that (SCC p. 42 para 28) “ 28. No authority of this Court has been shown on behalf of the respondents that there would be no completed transfer of right to use goods unless the goods are delivered. Thus, the delivery of goods cannot constitute a basis for levy of tax on the transfer of right to use any goods. We are, therefore, of the view that where the goods are in existence, the taxable event on the transfer of the right to use goods occurs when a contract is executed between the lessor and the lessee and situs of sale of such a deemed sale would be the place where the contract in respect thereof is executed. Thus, where goods to be transferred are available and a written contract is executed between the parties, it is at that point situs of taxable event on the transfer of right to use goods - 9 - would occur and situs of sale of such a transaction would be the place where the contract is executed.” 75. In our opinion, the essence of the right under Article 366 (29-A)(d) is that it relates to user of goods. It may be that the actual delivery of the goods is not necessary for effecting the transfer of the right to use the goods but the goods must be available at the time of transfer, must be deliverable and delivered at some stage. It is assumed, at the time of execution of any agreement to transfer the right to use, that the goods are available and deliverable. If the goods, or what is claimed to be goods by the respondents , are not deliverable at all by the service providers to the subscribers, the questions of the right to use those goods, would not arise.” 12. It has, thus, been highlighted that the essence of right under Article 366 (29-A) (d) relates to user of goods. Actual delivery of goods is not at all necessary for effecting the transfer of right to use any goods. What is important is that the goods must be available at the time of transfer and must be deliverable and delivered at same stretch. 13. It is pertinent to notice that the Supreme Court in the case of Bihar Sanchar Nigam Ltd. also considered its decision in the case of Aggarwal Brothers Vs. State of Haryana (1999) 9 Supreme Court Cases 182. That was a case where assessee had hired shuttering in favour of the contractors to use it in the course of construction of buildings. A transaction was held to be that of deemed sale. This is what the Supreme Court observed in paragraph 77 of its decision in the case of - 10 - Bharat Sanchar Nigam Ltd. (supra) “But in Aggarwal Bros. v. State of Haryana when the assessee had hired shuttering in favour of contractors to use it in the course of construction of buildings it was found that possession of the shuttering materials was transferred by the assessee to the customers for their use and therefore, there was deemed sale within the meaning of sub- clause (d) of clause (29-A) of Article 366. What is noteworthy is that in both the cases there were goods in existence which were delivered to the contractors for their use. In one case there was no intention to transfer the right to use while in the other there was.” 14. In the light of the legal position expounded by the Supreme Court concerning Article 366 (29-A)(d) of the Constitution of India and the definition of „sale‟ under section 2(t) clause (iv) of the Act of 1981, ultimately, each case has to be decided by the Assessing Officer on the basis of facts obtaining therein. 15. The order of assessment having been already passed under section 17(5) of the Act of 1981, the question that arises for our consideration is : whether the statutory remedy provided under the Act 1981, deserves to be bypassed ? 16. In the case of Paradip Port Trust Vs. Sales Tax Officer and ors. (supra), the Supreme Court held thus: “These appeals are directed against the judgment of the Orissa High Court dated 19-2-1998 in writ petitions filed by the appellant Port Trust against the orders of assessment passed by the Sales Tax Officer, Cuttack, in respect of Assessment Years 1990-91 to 1994-95. In the said writ petitions the case of the appellant was that the assessment for - 11 - sales tax has been made in respect of matters which do not fall within the legislative power of the State to impose sales tax. The writ petitioners raise questions involving interpretation of the words “transfer of the right to use any goods” in sub-clause (d) of clause (29-A) of Article 366 of the Constitution. By the impugned judgment, the High Court has dismissed the writ petitioners filed by the appellant on the view that the alternative remedy of an appeal against order of assessment is available under the sales tax law and since the said remedy is available the writ petitioners could not be entertained. Having regard to the question that was involved in the writ petitions relating to interpretation of sub- clause (d) of clause (29-A) of Article 366 of the C constitution and the taxability of the transactions in respect of which sales tax has been assessed by the Sales Tax Officer, we are of the view that the High Court should have entertained the writ petitions and should have considered the said question instead of requiring the appellant to avail the remedy of appeal under the Stales Tax Act. The appeals, are, therefore, allowed, the impugned judgment of the High Court is set aside and the writ petitions filed by the appellant are remitted to the High Court for consideration on merits. No order as to costs.” 17. The judgment of the Supreme Court in Paradip Port Trust is not applicable to the fact situation of the present case for the reasons that we indicate hereinafter. 18. This is third inning by the petitioner before this Court raising the same question that sales tax is not exigible to the erection of samiyana, pandal etc., as it is not covered by section 2(t) of the Act, 1981. In the first writ petition (C.W.J.C. No. 5638 of 2002), the petitioner approached this Court against the very initiation of assessment proceeding by the Assessment Officer and for - 12 - quashing the assessment order dated 15th September, 2001. The issues that have been raised in the present writ petition were wholly and squarely raised in that writ petition. That writ application came to be disposed of by this court on 6th May, 2002 whereby the ex-parte order of assessment dated 15th September, 2002 was set aside and the matter was remitted back to the Assessing Officer for consideration of the matter afresh in accordance with law. 19. The Assessing Officer, then heard the petitioner and passed fresh order on 7th October, 2004 under section 17(5) of the Act, 1981. This is the principal order under challenge in the writ petition which admittedly, is appealable under section 45 of the Act, 1981. However, the petitioner, instead of filing an appeal under section 45 of the Act of 1981, sought for review of the order dated 7th October, 2004 by making an application under section 47 of the Act of 1981. It appears that pursuant to the assessment order dated 7th October, 2004, when the petitioner did not pay the tax as per the order of assessment, a notice of demand was issued on 25th August, 2006. The petitioner approached this Court again by filing a writ petition (C.W.J.C. No. 535 of 2007) raising the same issues. We will reproduce the reliefs sought for by the petitioner in that writ petition which read thus: “(i) For declaring that letting out Shamiyana, erection of pandal etc. do not amount to sale within the meaning of sales under section - 13 - 2(E)(iv) of the Bihar Finance Act, 1981. (ii) For declaring that the transaction in question was merely a service and that the Union Government alone is competent to levy tax thereon and therefore there cannot be any question of deemed sale under Article 366 (29A)(d) of the Constitution of India read with the charging section of the Bihar Finance Act. (iii) For quashing the notice sent vide Process No. 2572/P undated received by the petitioner on 25.08.2006 for the period 1999-2000 and the ex- parte assessment order dated 7-10- 2004 passed under section 17(5) of Bihar Finance Act, 1981 as being wholly without any authority of law and contrary to the judgement of the Apex Court and this Hon‟ble Court purported to have been on 07.10.2004 without fulfilling the pre-condition laid down in the section 17(5) in violation of principles of natural justice. (iv) For restraining the respondents from taking any co-ercive action for realization of arbitrary tax amount, and for any other relief(s) for which the petition may legally be found entitled to in the facts and circumstances of the present case.” 20. The said writ petition was withdrawn by the petitioner after some arguments on 9th May, 2007. The order dated 9th May, 2007 passed in C.W.J.C. No. 535 of 2007 reads thus: “After some arguments, learned counsel for the petitioner seeks permission to withdraw this application. This application is dismissed as withdrawn.” 21. If after making some arguments, the counsel for - 14 - petitioner seeks withdrawal of the writ petition, the inference can very well be drawn what would have been the fate of the writ petition on merits had it not been withdrawn. Be that as it may, the fact of the matter is that the reliefs claimed in the present writ petition, and the first writ petition and the second writ petition (C.W.J.C. No. 535 of 2007) are identical and similar. 22. We are afraid, having withdrawn the writ petition (C.W.J.C. No. 535 of 2007) after making some arguments, wherein the order of assessment dated 7th October, 2004 was under challenge, the petitioner cannot be permitted to re-agitate same issues again in a fresh writ petition. As a matter of fact, this writ petition is nothing but an abuse of the process of the court since the earlier writ petition (C.W.J.C. No. 535 of 2007) was withdrawn by the writ petitioner. 23. In what we have observed above, we do not deem it necessary to deal with some of the decisions cited by the counsel for the petitioner. If the petitioner feels that the order of assessment dated 7th October, 2004 passed under section 17(5) of the Act of 1981 or the order dated 13th September, 2006 passed on the review application under section 47 of the Act of 1981 suffer from any error or illegality, he must pursue the remedy under the statute. There is no justification in approaching this court time and again without exhausting the statutory remedies. 24. The survey of the provisions of the Act, 1981 - 15 - would show that it is a self contained code and provides adequate and efficient remedy to an aggrieved person. Section 45 of the Act of 1981 provides for remedy of appeal, which reads thus: 45. Appeal – (1) subject to such rules as may be made by State Government under this part any dealer objecting to an order of assessment or penalty or both passed by the prescribed authority against him, or a person objecting to an order of penalty