2014 (10) TMI 130 - HC - VAT and Sales Tax

Court rules used excavator subject to 12.5% tax rate, not as capital asset

The Court ruled in favor of the petitioner in a case concerning the non-inclusion of a 'used-excavator' in the Registration Certificate. It clarified that ... Non-inclusion of 'used-excavator' in the Registration Certificate - Held that:- When the petitioner sought to sell the used excavator, he sought for inclusion of the same in the Registration Certificate. In fact, a mere perusal of Ext.P1 would indicate that 'excavator and its accessories' has been included as item No.7 in the Registration Certificate of the petitioner. It is to be noticed that, whether, it be used or new, an excavator is exigible to tax @ 12.5%, as indicated in sub-item No.10 of Entry 15 of S.R.O 82 of 2006. This is especially so, since the petitioner's purchase was in pursuance of an import and that, did not suffer a tax within the State. Hence, any sale made, whether it be inter-State or intra-State, would be exigible to tax @ 12.5% with only the rider that on an inter-State transaction, if the same is supported by Form-C, necessarily the petitioner would be entitled to a concessional rate as provided under Section 8 of the CST Act. Needless to say that any export made of the goods, would also be entitled to the incidence of tax exemption as applicable under the CST Act. Decided in favour of assessee. Issues:1. Non-inclusion of 'used-excavator' in Registration Certificate.2. Tax liability on sale of excavator.3. Classification of machinery as capital asset or stock in trade.Analysis:1. The petitioner challenged the non-inclusion of a 'used-excavator' in the Registration Certificate, which was required by the Assessing Authority for selling the excavator inter-State. The petitioner had faced detention of the excavator previously due to this issue. The Court noted that the Registration Certificate already included 'excavator and its accessories' as item No.7. It clarified that regardless of being new or used, an excavator is subject to tax at 12.5%. The petitioner's purchase, being an import without state tax, meant any sale, whether inter-State or intra-State, would attract a 12.5% tax, with a concessional rate applicable for inter-State transactions supported by Form-C. Export of goods would be tax-exempt under the CST Act.2. The Government Pleader argued that the machinery should be treated as a capital asset, not stock in trade, and thus should not be included in the Registration Certificate for sale. The Court disagreed, stating that sales tax applies to both capital assets and stock in trade. The Assessing Officer had included the excavator in the Registration Certificate not as a stock in trade item but as a capital asset. Therefore, the inclusion of a 'used excavator' in the Registration Certificate was deemed unnecessary. The petitioner could transport the vehicle after paying tax or claiming exemption, with a concessional rate applicable under the CST Act by producing a C-Form, as the excavator was already listed in the Registration Certificate.3. The Court allowed the Writ Petition, ruling in favor of the petitioner without imposing any costs. The judgment clarified the tax liability on the sale of the excavator, emphasizing that inclusion in the Registration Certificate was not required for the petitioner to conduct transactions and claim applicable tax exemptions or concessions under the CST Act.