Decided on April 09,2010

Quality Care India Ltd. Appellant


J. Shyam Sundar Rao, Chairman - (1.)THIS is an appeal filed against the orders of Authority for Clarification & Advance Ruling in CCTs Ref, No. PMT/P&L/A.R.Com/245, dated 6 -1 -2006. The appellant is M/s. Quality Care India Limited, Care Hospital, Road No. 1, Banjara Hills, Hyderabad. This appeal is preferred against the review order passed by the Advance Ruling Authority passed under Section 67 of APVAT Act, 2005. In the appeal grounds it has been contended as follows:
(2.)THE review order of the Advance Ruling Authority is without jurisdiction since there is no fresh material or decided case subsequent to the earlier order.
The transaction between a patient who comes for treatment in hospital as impatient and the appellant is in the nature of service contract, where under, the appellant agrees to treat the patient for consideration which includes room rent, doctors charges, nursing charges, medicines, injections, stents and the like articles to be used in the body of the patient. In the package contract, the dominant intention is service and in the case of administration of drug, the transfer of property is incidental. Similarly, in the course of treatment, stents are placed in the body of the patient which amounts only to incidental transfer of property. By no stretch of imagination, the transaction can be said to fall in any of the activities mentioned in Section 2(45) of the VAT Act defining works contracts namely, building construction, manufacture, repair etc., of any movable or immovable property. Hence, Section 4(7)(a) does not apply. The appellant placed reliance on the decision of Supreme Court in Rainbow Colour Lab case reported in : 118 STC 9; Associated Cement Companies Limited case reported in : 124 STC 59 & C.K. Jidheesh case reported in : 144 STC 322. The Advance Ruling Authority erred in following the decision of Kerala High Court in Malankara Orthodox Syrian Church case reported in, 135 STC page 224 overlooking the fact that the definition of dealer in Kerala Act includes sale as part of service -unlike definition of sale in APVAT Act where such words are used only in Section 2(10)(d) dealing with hotels. Even though, this point was urged, the Advance Ruling Authority failed to refer to it.

(3.)AT the time of hearing of the appeal, it has been contended by the counsel for the appellant Sri S. Dwarakanath that the Review Order passed by the Advance Ruling Authority reviewing their own order, without there being a fresh material de hors the record, is bad under law. Reliance had been placed by the counsel for the appellant on the decision of Andhra Pradesh High Court in the case of Girdharlal & Company vs. State of Andhra Pradesh reported in : (1995) 97 STC 442. It is also further contended that the decision relied on by the reviewing authority reported in : 135 STC 224 delivered by Kerala High Court is a judgment delivered in December, 2002, which was earlier available before the Advance Ruling Authority from the original Clarificatory order passed by it in 2005. It is contended that medicines, injections, stents that are administered is incidental to the service rendered by the hospitals and it is not a sale and that the hospital is not a dealer within the meaning of APVAT Act and hence the service of treatment cannot be construed as sale. It is also contended that if any stents are administered and medicines are issued, it is only incidental to the main activity of the hospital in rendering service i.e., treatment to the patients. Reliance had been placed by the counsel for the appellant on the decision of this Tribunal in between A.K. Diagnostics Limited, Hyderabad vs. State of Andhra Pradesh reported in : (2008) 47 APSTJ 193 & BSNL & Another vs. Union of India reported in : 145 STC 91.

Click here to view full judgement.
Copyright © Regent Computronics Pvt.Ltd.