Suhas Chandra Sen, J. - (1.) A large number of writ petitions have been moved by a number of banks challenging the notices issued by the Commercial Tax Officer, Central Section, Calcutta under Section 14(1) of the Bengal Finance (Sales Tax) Act, 1941 hereinafter described as the Act. Identical notices dated 13th December, 1985 were sent to a number of banks alleging that the banks were "engaged in the business of letting out of movable property, viz., bank lockers on hire/lease/rentals to others for cash, deferred payment or other valuable consideration". It was alleged that such transfer of right to use the bank locker amounted to "sale" with effect from 1st April, 1984. The banks were called upon to produce documents and/or statements relating to receipts on account of rent of lockers of different branches of the banks in West Bengal from 1st April, 1984 for the purpose of levy of sales tax under the Act. The words "taxes on the sale or purchase of the goods other than newspapers" can be levied by the State Legislature by virtue of entry 64 of List II of the Seventh Schedule to the Constitution. By the Constitution (46th Amendment) Act, 1982, Article 366 which the definition clause of the Constitution was amended and the words "tax on the sale or purchase of goods" were defined to include by Clause (29A) of Article 366 : (29A) '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 valu able 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.
(2.) In order to take advantage of this extended definition given to the words "tax on the sale or purchase of goods", the definition of the word "sale" in Section 2(g) of the Act was changed and a new definition of "sale" was inserted with effect from 1st April, 1984 as under : 'Sale' means any transfer of property in goods for cash or deferred payment or other valuable consideration, and includes- (i) any delivery of goods on hire-purchase or any system of payment by instalments, (ii) any 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, or (iii) any 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 delivery, transfer or supply of any goods shall be deemed to be a sale of those goods by the person making the delivery, transfer or supply and a purchase of those goods by the person to whom such delivery, transfer or supply is made, but does not include a mortgage, hypothecation, charge or pledge.
(3.) In this case no transfer of property in the bank locker has taken place as a result of hiring out of the lockers to the customers. Therefore, it has to be seen whether this case comes within any of the three categories of transactions which have been treated as "sale" under the aforesaid definition. Section 2(g)(i) deals with delivery of goods on hire-purchase or other system of payment by instalment. Section 2(g)(iii) brings within the ambit of "sale" any supply of goods, being food or drink, even if such supply is made by way of or as part of any service. The provisions of Clause (i) or Clause (iii) of Section 2(g) cannot conceivably apply to a case of letting out of bank locker. It has now to be seen whether this case comes within the extended meaning of "sale" given in Clause (ii) of Section 2(g).;