R.K.Datta Chaudhuri, Judicial Member - (1.) IN this application under Section 8 of the West Bengal Taxation Tribunal Act, 1987, the Petitioner, M/s. Auto Hitech (Pvt.) Ltd., a motor vehicle dealer, challenges the order passed by Sri M.C. Mukhopadhyay, Special Commissioner, Commercial Taxes, West Bengal on January 20, 2009 confirming the appellate order passed by Shri C. Singh, the Additional Commissioner of Commercial Taxes, West Bengal on March 28, 2008 in the Appeal Case No. 125/CD/ Addl. CCT/2006 -07 affirming inclusion of payment of insurance premium, registration cost and road tax by the dealer to the sale price in the assessment order passed on 21st June, 2006 in respect of fourth quarter ending March 31, 2004 under Section 45 of the West Bengal Sales Tax Act, 1994 by Shri R.N. Mukherjee, Deputy Commissioner of Commercial Taxes, Corporate Division, the issue is whether receipts of the sums by the dealer from the customers to whom the motor vehicles were sold by the dealer towards registration, road tax and insurance premium form part of the sales price of the motor vehicles as defined in Section 2(31) of the WBST Act, 1994. The decision of the authorities below on the point of inclusion of the payments of registration cost, road tax and insurance premium was based on the decision of the two -member Bench of this Tribunal made in the judgment delivered on January 17, 2006 (Frostees Exports (India) Pvt. Ltd. v. A.C.C.T., Bhawanipur Charge, (2006) 47 STA 228 (WBTT)) in the Case No. RN -525 of 2003 between the Petitioners of this case and the ACCT, Bhowanipore charge and another. In the said judgment this Tribunal's Bench consisted of two honourable members observed as follows: We are called upon to answer upon the facts and circumstances of the case as to whether the transaction in question is one integrated transaction or an after -sale activity. One of the modes of such determination as to whether a particular payment is to be included in the sale price or not is to see whether selling dealer while despatching goods had shown in the sale invoice - -the disputed expenditure as a separate item. Even if it is shown as a separate item in the same bill it may signify that he had expended so and that will be included in the sale price. Whether a certain expenditure or charge would be included in the 'sale price' or not is a pure question of fact depending upon the circumstances of each case. It is also to be seen whether some expenses like packing, had been incurred in order to deliver the goods in deliverable stage, prior to delivery. Cost of such expenditure like packing realized from the purchaser is to be included in the sale price. Sometimes payment shall be deemed to be made by the manufacturer and shall be includible in the taxable turnover of the manufacturer though actually paid by purchaser before removing goods from factory. To illustrate when purchase of liquor is made by a dealer, sometimes he pays the excise duty for removal of the same from the manufacture -factory. The nature and character of a transaction of a sale to a large extent is reflected in the contract or the agreement entered into between the parties. In this case there were hire -purchase agreements and the purchases of cars were made mostly through financiers, we cannot in the absence of such agreement papers before us decipher what were the terms of the sale transactions. The honourable Supreme Court in a decision in Commissioner of Sales Tax, U.P. v. Rai Bharat Das & Bros. reported in, (1988) 71 STC 277, held that the sale price means any such charge for anything done by the dealer in respect of the goods at the time or before delivery thereof. In that case at the request of the customer, sand in gunny bag was delivered and it was held that the packing charges formed part of sale price. That fell within 'any sum charged for anything done, etc.'. The ruling in Hindustan Sugar Mills Ltd. v. State of Rajasthan : (1979) 43 STC 13 (SC) rendered by the honourable Supreme Court referred to certain facts which are not applicable here. There Government control order was paramount in deciding that railway freight charges should be part of sale price though mentioned as 'free rail destination railway station'. In Commissioner of Sales Tax v. Premier Automobiles Ltd. : (1985) 59 STC 147 (Bom), it was held that service pool charge calculated by the Assessee for its distributors was not part of the consideration for the vehicle sold to the distributor. That was under a benefit of service promotion scheme available to customers and to the distributors only after cars were delivered to the ultimate customer. That is not the case here. In Hindustan Steel Ltd. v. State of Tamil Nadu : (1984) 56 STC 70 (Mad) there was sale of M.S. rod, etc., by the Assessee and there was a separate bargain between the parties for cutting, binding such articles for easy transport. Calculation of cutting and binding, etc., had been shown separately in the bills. The court had to decide whether the same should be held post -sale or pre -sale matter or whether includible or not in sale price or whether form part of turnover or not. It was held that there was a separate bargain between the purchaser as regard to the service to be rendered by the Assessee for cutting and binding of the articles purchased by the customer for easy transport purpose. So, when there is a separate bargain, it is not possible to include such charge as part of sale price. In E.I.D. Parry (I) Ltd. v. Assistant Commissioner of Commercial Taxes, (2000) 117 STC 457, the honourable Supreme Court held that excess transport charge for transporting sugarcane borne not by the growers of sugarcane, but by the third party transporters to enable regular supply of sugarcane was not a post -sale expense and it was part of the implied agreement between the sugar manufacturers and growers of sugarcane to make the supply steady. What transpires from the above case laws is that the amount paid by way of consideration by the purchaser to the seller of goods in pursuance of the contract of sale can ultimately be regarded as purchase price while calculating the turnover for the purpose of sales tax legislation. What can legitimately brought to sales tax is the aggregation of the consideration for the transfer of property. All the payments should have been made pursuant to the contract of sale and not de hors it. Whether one of the components of the price goes to the coffers of the seller or not will not cease to be so, if it is necessary for completing the same. Thus the total amount of consideration for the purchase of goods would include the price strictly so called and also other amount which are payable by the purchaser or which represent the expenses required for completing the same as the seller would ordinarily include all of them in the price at which he would sell his goods. But if the sale price is fixed statutorily then the only obligation of the purchaser under the agreement would be to pay that price only and no other amount can be included in the said price even if the same is paid by the purchaser to the seller. So, decision on true nature of the transaction requires reading of the entire fact -situation concerning the agreement, trade practice, etc. In the absence of any agreement it appears that the Petitioner -dealer took upon the responsibility to arrange for getting registration, tax token and insurance of the vehicles done at the time of negotiation of the sale of the cars. From the impugned order, it appears that bill and other relevant documents were gone into by the concerned officer and he found those to be one not service relating to any post -sale matter; rather it was as pre -sale agreement. The argument that the provisions of the Motor Vehicles Act and Rules are against such a decision as stressed by the learned advocate for the Petitioner does not appear to carry much weight. Section 39 of the Motor Vehicles Act, 1988 containing provision of compulsory registration has a proviso clause stating that nothing in the Section shall apply to motor vehicle in possession of a dealer. Sub -clause (30) of Section 2 which defines 'owner' shows that in respect of motor vehicle subjected to hire -purchase agreement or agreement for lease or agreement for hypothecation, the person in possession of the vehicle under agreement is the owner. Section 146 of the Motor Vehicles Act does not mandate that only owner is entitled to effect the insurance. Any person who uses it or allow any other person to use it can get the insurance effected. Application for registration as per Rule 47 has to be filed within seven days of taking delivery as per Rule 47. Form 20 as per Rule 47 in its serial number five refers to submission of sales certificate and certificate of road worthiness issued by the manufacturer from whom the vehicle has been purchased is to be submitted as enclosured form 23 as per Rule 48 can be complied with by signature of the financier which is required to be attested by the motor vehicle registration authority. So, it does not appear that the customer has to take delivery and to get the works done himself; the dealer can get it done as per the Motor Vehicles Act through financier and other such person even when the customer actually did not in fact take physical delivery of the car. The trade practice also may be taken into account which is to the effect that the dealer does everything at the time of the sale of the vehicle and accordingly such charges as levied by the seller by including in one sale bill or invoice, shall be construed as sale price and hence liable to be included in the turnover of the dealer and therefore exigible to tax.
(2.) IN the assessment order it was observed that the dealer collected "against insurance and registration/road tax from customer on each sale of car before delivery of the car to the customer. But in spite of several adjournments, the dealer does not produce the corresponding ledger folio to come to the exact figure of his realization on sale bill/debit note on these heads". The Petitioner 's case is this. He is a reseller of motor vehicles. He sells the motor vehicles at the price fixed by the manufacturer. This sale price includes sales tax, surcharge, additional surcharge. The cars were delivered to the customers with invoices and temporary registration certificates. After sale in some cases, at the request of the buyers he arranged for getting the sold vehicles insured, registered with the motor vehicles authority, payment of road tax and getting the vehicles insured on behalf of the customers. The customers separately paid the said amount, against debit notes. Some customers however themselves arranged for the above. All these payments are post -sales events. Those were not part of the consideration for the sale. Unlike in the Case RN -525 of 2003 (Frostees Exports (India) Pvt. Ltd. v. A.C.C.T., (2006) 47 STA 228 (WBTT)), the Petitioner collected the amount paid for registration, insurance and road tax separately and hence the decision of this case would not apply in its case.
(3.) THE Respondents though did not file affidavit -in -opposition, contested the application appearing through learned S.R., Mr. A.K. Nath, and subsequently through learned advocate Shri Boudhayan Bhattacharyya. Mr. Bhattacharyya submitted that the insurance charges, registration charges and road tax realized by the Petitioner from the purchaser were to be construed as integral parts of the "sale price" within the meaning of Section 2(31).;