Wipro Information Technology Limited vs State of Tamil Nadu

F.M. Ibrahim Kalifulla, J.—All these revisions pertain to the assessment years 1986-87, 1987-88, 1988-89 and 1990-91. The common

questions of law raised are as under :

(i) Whether the Sales Tax Appellate Tribunal committed an error of law in confirming the tax demand u/s 3B of the Tamil Nadu General Sales Tax

Act, 1959 on the income received by the petitioners for the performance of annual maintenance contracts executed by the petitioners, while failing

to note that the same were purely service agreements entered into by the petitioners with the users of computers, no part of the income being

attributable to sale of goods ?

(ii) Whether the Sales Tax Appellate Tribunal committed an error of law in holding that the chartered accountant certificate filed by the petitioners

to show the actual consumption of spares used in the annual maintenance contract could not be relied upon to determine the value of material used

in the contract for the purpose of determining liability u/s 3B of the Tamil Nadu General Sales Tax Act, 1959 when in fact the provision did not

prevent the filing of a chartered accountant certificate to establish the cost of material used in the contract ?

As far as the first question is concerned, learned counsel for the petitioner fairly submitted that the issue is covered by the decision of the

honourable Supreme Court reported in Xerox Modicorp. Ltd. v. State of Karnataka (2005) 142 STC 209. That case related to sale of xerox

machines and the agreements entered into with the consumers either as full service maintenance agreement (FSMA) or spares and service

maintenance agreement (SSMA).

The honourable Supreme Court has ultimately held as under in paragraph Nos. 7 and 18 (pages 213 and 216 in 142 STC) :

Even though at first blush the submissions of Mr. Ganesh may appear attractive, on a proper consideration, we think that Mr. Iyer was right

when he submitted that the agreements are not just service contracts but also maintenance contracts. Mr. Iyer is right that the machines belong to

the customer after they are sold to them. If after the sale some part was to be replaced or some component supplied there would be sale as

understood in law. Under the agreements, apart from the service element, for which no tax is sought to be levied, there is the element of supplying

parts and components like toners, developers, etc. Mr. Iyer is right in submitting that merely because price is not being separately charged for this,

does not detract from the position that the supply is for a price. Such supply has all the elements of sale as understood in law. There is a transfer of

title in movables for a price. The mere fact that it is not known in the beginning whether or not a part will have to be replaced is irrelevant. If there

were no such agreements, it would not be known whether or not a part would be required to be replaced. It could not be denied that, even in the

absence of any such agreements, if a part was required to be replaced and was replaced there would be a sale of that part. The same position

remains even under the agreements. As and when a part is required to be and is replaced a sale takes place at that instance. To leave no room for

doubt it must be mentioned that the tax is on sale. So if there is no replacement of a part then there is no sale of a part. So far as toners and

developers are concerned it is known from the beginning that they will require regular replenishment. Under the SSMA the customer buys them.

Under FSMA they are replenished by the appellants.

...

In view of the above it is held that there is sale of parts, both in FSMA and SSMA. There is also sale of toners and developers even in the

case of FSMA. Before us no contention is raised that sales tax is not being levied on a correct basis. On the contrary Mr. Iyer pointed out to us

the order dated August 30, 1994 of the Joint Commissioner of Commercial Taxes wherein, whilst remitting back for recalculation of tax, the

principles on which it is to be done are laid down. To us they appear to be correct.

In the light of the said decision of the honourable Supreme Court, the first question is answered against the petitioner-assessee.

As far as the second question is concerned in the case on hand, the petitioner after the sale of computers, when entered into the annual

maintenance contract and while carrying out such maintenance work wherever spares were used to replace the burnout parts to such extent, as

held in the decision of the honourable Supreme Court, transfer of property occurs, consequently the same would attract payment of tax. The

assessing authority in the absence of any material placed before him invoking section 3B of the TNGST Act, assessed such transfer of property

involved to an extent of 50 per cent of the value of the annual maintenance contract.

Before the Appellate Assistant Commissioner, the petitioner placed reliance upon the auditor''s certificate and certified the value of the materials

involved to an extent of 61/2 per cent of total value of the annual maintenance contract. The petitioner is also said to have placed further materials

which disclose the actual extent of spares used in the course of performing of the maintenance contract. In such circumstances, the Appellate

Assistant Commissioner while upholding the order of the assessing authority that the case of the petitioner would fall u/s 3B of the TNGST Act,

remitted the matter back to determine the actual value of the materials used based on the details furnished by the petitioner. The petitioner

approached the Tribunal questioning the order of the Appellate Assistant Commissioner so far as it related to the applicability of section 3B of the

TNGST Act. The Tribunal while rejecting the appeal, also held that the assessment at 50 per cent, of the value of annual maintenance contract or

the percentage claim by the appellant on the basis of certificate done by their auditor are not relevant. The Tribunal proceeded to hold that the

Appellate Assistant Commissioner rightly remanded the matter for reassessment on the basis of actual cost of parts replaced or the transfer of

property in goods involved in the execution of annual maintenance contract. To that extent, the order made by the Appellate Assistant

Commissioner was sustained.

Mr. Prasad, learned counsel appearing for the petitioner, pointed out that the assessment years related to the periods 1986-87, 1987-88,

1988-89 and 1990-91, nearly 20 years before, and even though the petitioner placed the materials before the Appellate Assistant Commissioner,

the petitioner would be satisfied, if this court fixes any higher percentage than what is claimed by the petitioner based on its auditor''s certificate.

In this context, learned counsel for the petitioner also placed before us a subsequent order passed by the Sales Tax Appellate Tribunal in a

batch of appeals preferred by the very same petitioner, which related to the assessment years 1989-90, 1995-96, 1997-98 and also 1992-93 to

1994-95 and 1999-2000 wherein, the Tribunal chose to fix the value of materials used in the execution of annual maintenance contract at 35 per

cent for levy of tax.

The learned counsel for the petitioner also submitted that since the assessment years involved in the present revisions related to the period even

prior to those assessment years, instead of undergoing the strenuous exercise of remand and thereby the assessing authority to examine the

materials for fixing the value of the cost of spares used, the petitioner would prefer any lessor percentage than what was fixed by the Tribunal in the

appeals pertaining to the years subsequent to 1989-90.

We have heard learned Special Government Pleader (Taxes) and we are also of the considered opinion that after the period of nearly 20

years, it would be a futile exercise for the assessing authority to examine the materials placed by the petitioner for arriving at the cost of parts used

and instead fixing such cost of materials at 25 per cent of the value of the annual maintenance contract, would meet the ends of justice and that

such fixation of 25 per cent can be held to be exclusively for the assessment years concerned in these revisions and not quoting it as a precedent

for any other assessment years and thereby put a finality to the assessment to be made in the case on hand. In that view, we dispose of all these

revisions holding that the learned counsel for the petitioner also agrees for fixing the percentage of value of spares involved at 25 per cent of the

value of annual maintenance contract of the respective assessment years.

We, therefore, dispose of all these revisions by holding that annual maintenance contract would fall u/s 3B of the TNGST Act and as far as the

actual value of material property transferred in the course of execution of such annual maintenance contract, the assessment years covered by these

revisions are concerned, we fix it at 25 per cent, and direct the respondent to levy tax on that basis.

The revisions are disposed of accordingly. No costs.