TaxTMI 
TaxTMI 
TaxTMI 
2014 (7) TMI 660
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....ng that the impugned transfer of compressor effected by the respondent to its customers is not sale of goods under this Act as there is no consensual agreement of sale of the said compressor? (ii) Whether on the facts and in the circumstances of the case and on a true and correct interpretation of the definition of sales under sub-section 28 of section 2 of the Bombay Sales Tax Act, 1959, Hon'ble Tribunal was correct in holding the impugned transfer of compressor effected by the respondent to its customers against money and old defective compressor together, is not transfer for valuable consideration? (iii) Whether on the facts and in the circumstances of the case and on a true and correct interpretation of the impugned contract, Hon'ble Tribunal was correct in holding that the impugned transfer of compressor effected by the respondent to its customers is transaction of cross transfer of property in defective compressor and repaired compressor off the shelf, from the sales office of the company and not sale of goods under this Act as there is no consensual agreement of sale of the said compressor? (iv) Whether on the facts and in the circumstances of the case and on a tr....
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....39;sale' of the repaired compressor. 5. In the present case, the Respondent was assessed for the year 2002-03. During the course of the assessment proceedings, the Assessing Officer issued a notice to the Respondent for treating the repair charges as a sale of the old repaired compressors. Before the Assessing Officer, the Respondent claimed that there was no sale of old repaired compressors but an exchange of the same for the defective compressors at the option of the customer. It was further contended that the Respondent received repair charges for repairing the defective compressor. The Assessing Officer negated this contention and held that there was a sale of old compressors within the meaning of section 2(28) of the BST Act and that the repair charges received by the applicant was the sale price. He therefore levied sales tax on a gross turnover of Rs. 2,02,55,207/-. Being aggrieved, the applicant preferred First Appeal under section 55 of the BST Act before the Joint Commissioner of Sales Tax (Appeals), Pune Division, Pune who vide his order dated 17th June 2009 dismissed the appeal of the Respondent. 6. Being aggrieved by the order passed in the First appeal, the Resp....
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....f 1956); (b) (i) every disposal of goods referred to in the Explanation to clause (11); (ii) a delivery of goods on hire-purchase or any system of payment by installments; (iii) 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 drinks (whether or not intoxicating, where such supply or service is made or is given on or after the 2nd day of February 1983, for cash deferred payment or other valuable consideration; (iv) the transfer, otherwise than in pursuance of a contract of property in any goods for cash, deferred payment or other valuable consideration; (v) the supply of goods by any unincorporated association or body of persons, to a member thereof for cash, deferred payment or other valuable consideration; shall be deemed to be a sale;" 9. The said section clearly stipulates that a sale means a sale of goods within the State for cash or deferred payment or other valuable consideration. Therefore, in order to constitute a sale, it is necessary that there should be an agreement between the parties for the purpose of transferring title to the goods which pre-supposes the c....
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....ion' take colour from the preceding expression 'cash or deferred payment' which would mean some other monetary payment in the nature of cash or deferred payment. 11. In the present case, we find that there is no sale at all. As stated earlier, a defective compressor is brought by the customer of the Respondent to its Sales and Service Office. Thereafter, the customer is informed about the normal time of repairs which is approximately 60 days. At that time, on payment of the repair charges, the customer is given an option either to wait for 60 days or to take another repaired compressor off the shelf of the Respondent. If the customer opts for the latter, then a delivery note cum debit advice as well as a repaired compressor is handed over to the customer. It is therefore evident that there is no sale of the repaired compressor. All that is done is that on payment of repair charges, the customer is given an option not to wait for 60 days and instead take another second hand repaired compressor immediately in lieu of the defective compressor. 12. The MSTT, after considering all the evidence in this regard, came to the conclusion that in the present case, there was a tra....