B.B Deb, J.:— This Writ Appeal is directed against the judgment dated 8th July, 1996 passed by the learned Single Judge in Civil Rule No. 144 of 1990 by the State-respondents.
2. In short, the case of the writ petitioner (herein the respondent) is that the writ petitioner being a registered Trade Union of vehicle operators have been doing transport business by operating different kinds of vehicles throughout the State. During last Parliamentary Election, 1989 a large number of vehicles belonging to the petitioner's Union (Tripura Bus Syndicate) were requisitioned by the respondent No. 2, the District Magistrate and Collector, West Tripura, vide requisition order dt. 4.11.1989 (Annexure-2 to the writ petition) in exercise of powers under section 160 (i)(b) of the Representation of the People Act, 1951 read with Notification No. F. 14(2)-GA/77, dated 30.10.1989 Subsequently, vide Annexure-3 dated 8th November, 1989 the Chief Electoral Officer accepted the rates of hiring charge so determined by the respondent No. 2. in compliance of the aforesaid requisition order the owners of the vehicles placed their vehicles at the disposal of the respondent Nos. 1 and 2 and in turn the respondents used and utilised the vehicles in connection with the Parliamentary Election in 1989.
3. The owner-writ petitioner prepared the bills for hiring charges as per rate mentioned in the Memo dated 8.11.1989 (Annexure-3) to the writ petition) but the appellant deducted 4% sale tax from the bill as payable to the Sale Tax authority pursuant to the related provisions of Tripura Sales Tax Act. The writ petitioner being aggrieved submitted objection against such deduction of 4% being sale tax contending, inter alia, that service rendered by the vehicle operators was not a sale and as such not leviable under the Tripura Sales Tax Act. Their contention is that whatever amounts payable to the operators are not sale price and as such the transaction is not covered by the term ‘sale’ as defined under the Sales of Goods Act and also under the Tripura Sales Tax Act and as such the amount is not taxable.
4. The appellants herein being respondents in the writ petition contended, inter alia, that in view of the amended definition of ‘sale’ under the Tripura Sales Tax Act, 1976, the transaction was covered by the definition ‘sale’. The relevant provision of section 2(g) of the Tripura Sales Tax Act, 1976 is quoted below:—
“2(g) ‘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 in installments,
(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,
and such delivery or transfer of any goods shall be deemed to be a sale of those goods by the person making the delivery or transfer and a purchase of those goods by the person to whom such delivery or transfer is made.
but does not include a mortgage, hypothetcation, charge or pledge:—
5. The aforesaid definition of ‘sale’ has been incorporated by way of Tripura Sales Tax (Third Amendment) Act, 1984 in compliance with and pursuant to the amended provision of Clause 29A of Article 366 of the Constitution of India as amended by the constitution (46th Amendment) Act, 1982. The amended Clause 29A under Article 366 runs as follows:—
“(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 of 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 valuable 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 their valuable consideration,
and such transfer, delivery of 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.”
6. From the aforesaid statutory as well as constitutional provisions it reveals that for levying and realising sale tax the definition of the term ‘sale’ stood extended to the extent of transferring 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). Sub-clause (1) of Clause 29A under Article 366 of the Constitution prescribes that a tax on sale or purchase of goods is leviable on a transfer, otherwise than in pursuance of a contract, of property in any goods for cash, deferred payment or other valuable consideration. From the impugned judgment under appeal it seems that the learned Single Judge held that he vehicles requisitioned by the authority for the purpose of smooth running of Election is not a sale, but a forced requisition having no option left with the operators and such forced requisition could not be termed as a ‘sale’ for the purpose of Sales Tax. It is correct that in common parlance sale is a voluntary act in transferring property in goods by the sellers to the buyers on a settled/negotiated price, paid or on credit. But this commercial meaning of the term ‘sale’ as is available under the Sales of Goods Act had undergone a change in view of the extended meaning inserted by the 46th Amendment of the Constitution and having followed the said Constitutional provision the State also amended the term ‘sale’ in Tripura Sales Tax Act and thus, the extended meaning of the ‘sale’ includes not only the transfer of property in goods but also ‘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. From that definition as inserted in the Tripura Sales Tax Act having its source in the Constitution mere transfer of right to use any goods is a ‘sale’ for the purpose of tax on sale or purchase of goods. There is no quarrel as to whether vehicles are goods or not. In view of section 2(7) of the Sale of Goods Act, 1930, ‘goods’ means “every kind of moveable property other than actionable claims and money; and includes stock and shares, growing crops, grass, and things attached to or forming part of the land which are agreed to be severed before sale or under the contract of sale; and as such undoubtedly the vehicles requisitioned in the present case are goods. The Election authority took the vehicles under their control and the vehicles plied in accordance with the directions and instructions of the Election authority as per Election schedule and for transportation of Election officials, Election materials, ballot boxes etc. from the office of the Returning Officer to the respective Polling Booths and to undertake return journey. During the period of detention of the vehicles under requisition, the right to use of the aforesaid vehicles stood transferred from their owners/operators to the Election authority and as such it is undoubtedly a sale, of course, statutory sale for the purpose of Triprua Sales Tax Act. The ‘sale’ is of different kinds, voluntary sale, court sale, auction sale, statutory sale etc. Here, in the instant case, vehicles had been requisitioned pursuant to the provision of Section 160 of the R.P Act and as such having regard to the extended meaning of the ‘sale’ as available under Clause 29A of Article 366 of the plaintiff read with Section 2(g) of the Sales Tax Act is a statutory sale.
7. The learned senior Government Advocate has referred the following citations:—
(1) 1989 STC Vol. 75 page 217 (20th Century Finance Corpn. Ld. v. State of Maharashtra);
(2) 1993 STC Vol. 89 page 1 (Selvel Advertising Private Ltd. v. Commercial Tax Officer, Alipore Charge).
8. In the aforesaid cases, the transfer of the right to use goods have been accepted to be the extended meaning of sale for the purpose of sale tax. The decision of the first referred of 20th Century Finance Corpn. Ltd. was carried to the Hon'ble Apex Court in Civil Appeal No. 4500 of 1989 along with other writ petitions and the Constitutional Bench of the Hon'ble Apex Court held that transfer of right to use goods is undoubtedly taxable sale but the said deemed sale must have to be taken place within the State. The aforesaid deemed sale if occurred in course of Inter-State trade or commerce, the State has no competence to levy tax. From the aforesaid decision particularly the dictum of the Hon'ble Apex Court in 20th Century Finance Corpn. Ltd. (supra), it remains settled that the deemed sale covered by the provision of Article 366 (29A) is a taxable sale. In our considered view, any sale within the State by way of voluntary sale or by way of statutory sale is taxable under the Tripura Sales Tax Act pursuant to section 2(g) of the Tripura Sales Tax Act, 1976.
9. The learned Single Judge in the impugned judgment termed the transaction as forced sale and as such not subject to any taxation. A statutory sale is a sale which is done in the manner prescribed by law and having followed the procedure of law. Under the Food Adulteration Act taking of sample by the Food Inspector (Health) for the purpose of analysis from the possession of the vendor is a statutory sale and the question regarding statutory sale under different statutes is no longer res-integra. In the Tripura Sales Tax Act nowhere it is prescribed that for the purpose of levying tax the sale must be a ‘sale’ under an agreement and thus, we are of the considered Opinion that sale including statutory sale is taxable under the Tripura Sales Tax Act. Another question may arise that in such statutory sale the seller has no option to bargain the sale price, but to accept the rate offered by the buyer. In this respect the first proviso to Section 161 of the R.P Act may conveniently be referred to. In that proviso the persons aggrieved (here the operators/owners of the vehicles) have given statutory right to move the State Government for referring the matter relating to the charge for hiring the vehicle to an Arbitrator and thus, it cannot be said that the rate unilaterally fixed by the Government is a final one. In the present case, the owner/operator of the vehicles under requisitioned never claimed any additional amount as sale tax nor disputed the amount fixed by the Government. It is a settled proposition of law that sale price of any goods means and includes any additional amount charged or levied separately from the buyer as sale tax. The operators/owners of the vehicles could have demanded 4% tax to be added in the rates so determined/fixed by the authority, but they did not.
10. In view of the legal position discussed above, the present appeal succeeds. The impugned judgment dated 8.7.1996 passed by the learned Single Judge in Civil Rule No. 144 of 1990 is set aside.
11. The appeal stands allowed with no order as to costs.
Sales Tax Act.