Sale, Goods and Dealer

September 19th, 2012

Goods

 

CST is on ‘goods’ Goods include all kinds of movable property, but not newspapers, actionable claims, stocks, shares and securities.Electricity is goods. Newspapers are ‘goods’ but sales tax cannot be imposed in view of specific exclusion from definition of ‘goods’
Intangible goods Intangible or incorporal articles are ‘goods’ e.g. patent, copyright.DEPB and Advance Authorisation are ‘goods’ and are taxable
What are not goods Plant and machinery erected at site is not goods..
Software is goods Software (branded as well as unbranded) is goods – Tata Consultancy Services v. State of Andhra Pradesh (SC 5 member Constitution bench) * Bharat Sanchar Nigam Ltd. v. UOI (SC 3 member bench).
Lottery tickets is actionable claim, though it is goods Lottery ticket is ‘actionable claim’ and not taxable.
Sale of SIM card Simple sale of SIM card can be taxed, but not when supplied as incidental to service.

Dealer

 

Dealer liable to CST “Dealer” means any person who carries on (whether regularly or otherwise) the business of buying, selling, supplying or distribution of goods, directly or indirectly, for cash, or for deferred payment, or for valuable consideration Definition of ‘dealer’ is wide, but only those who ‘effect’ sale are liable to register and pay CST.
Government is dealer Government is ‘dealer’ if it carries on business. Railways are ‘dealers’. Insurance company is also ‘dealer’.
Bank, club, auctioneer as dealer Bank can be dealer in respect of sale of pledged goods, if definition of ‘dealer’ includes bank. Sale of pledged goods takes place in the course of business.A ‘club’ can also be ‘dealer’.

An auctioneer is not a dealer, if he does not transfer the property in the goods to the successful bidder.

Profit motive not required Profit motive is not material for ‘Business’. Adventure is also ‘business’.
Adventure is also business Business normally implies something done on regular basis. However, since business includes ‘Adventure’, occasional transactions may also be covered. Adventure implies some ‘speculation’.
Ancillary, incidental business taxable Ancillary, incidental and casual business is also taxable, but main activity should be ‘ to carry on business’.Incidental or ancillary business like. sale of used car, sale of scrap, sale of old machinery, sale of old furniture etc. is taxable, though normally the dealer may not be in business of selling cars, furniture or machinery.
Sale of business is not business and cannot be taxed Sale of business is not business and cannot be taxed.

Sale and deemed sale subjected to CST

 

Sale can be actual or deemed sale Sale can be actual (conventional) sale or deemed sale. Conventional sale takes place when there is complete transfer of property in goods from buyer to seller for valuable money consideration.
What is not ‘sale’ Charge, mortgage, hypothecation, pledge, simple job work, branch transfer and barter is not sale. Supply to Agent is not ‘sale’.
Supply of goods to works contractor Supply of material to contractor in case of works contract can be ‘sale’
Deemed sale under Constitution Concept of deemed sale has been introduced by 46th amendment to Constitution, by inserting Article 366(29A) in 1983.
Types of deemed sale Compulsory sale, hire purchase, leasing, hire (transfer of right to use), sale of food articles, sale by unincorporated association and goods involved in works contract are ‘deemed sales’.
Transfer of right to use goods Goods [e.g. furniture, utensils, machinery, mattresses etc.] given on hire is ‘transfer of right to use for consideration’ if full possession and control is given to hirer. In such case, sales tax (Vat) is payable. If complete possession and control is not handed over, service tax would be payable.
Sale in canteen Sale in canteen is taxable.
Definition of ‘works contract’ ‘Works contract’ means a contract for carrying out any work which includes assembling, construction, building, altering, manufacturing, processing, fabricating, erection, installation, fitting out, improvement, repair or commissioning of any movable or immovable property.Building contract is ‘works contract’. Painting or printing is also a ‘works contract’.
Tax is on ‘goods involved in works contract’ Sales tax (Vat) is on goods involved in works contract and not on works contract as such.
Passing of property in goods in works contract In works contract, property in goods should pass on the principle of accretion, accession or blending when the works contract is getting executed. If property in goods pass after execution of works contract, it is ‘sale’ and not ‘transfer of property in goods involved in execution of works contract’.
Photography Photographic work is not ‘sale of goods’. It is contract for skill and labour. It seems Vat can be imposed on value of goods involved in such work (no consumables as property in such consumables is not transferred to customer).
Valuation in case of works contract In case of works contract, sales tax/vat can be levied only on value of goods involved and not on entire value of contract. Composition scheme to levy tax on flat basis on entire value of contract is permissible, but it is optional.
Inter state sale in case of deemed sale There can be inter-state sale of goods in works contract, leasing, transfer of right to goods and C form can be issued/received.
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