C. Mohammedali vs State of Kerala

C.N. Ramachandran Nair, J.—The question raised in the revision filed by the assessee is whether acceptance of old gold ornaments as deposit and later return of the same in new ornament form can be treated as purchase of old gold ornaments and sale of new ornaments, respectively, attracting liability to tax on both purchase and sale. The Tribunal held against the petitioner and hence, this revision is filed before us.

We have heard learned Counsel appearing for the revision-petitioner and the Special Government Pleader for the respondent.

The terms of the deposit scheme are extracted in the Tribunal''s order. It is very clear, therefrom, that the item taken as deposit, viz., old gold ornament is melted and converted into new gold ornaments by the petitioner and the same is sold after taking it as stock-in-trade. Towards consideration for the gold deposit, the petitioner is liable to pay interest or profit share, is what is stated in the agreement. However, there is nothing to indicate as to what happens in the event, the petitioner''s business runs into loss.

The Special Government Pleader has relied on the decision of the Division Bench of this Court reported in Kohinoor Fashion Jewellery Vs. State of Kerala, wherein this Court has held that acceptance of gold deposit by a firm from the partners amounts to purchase for the purpose of liability for purchase tax. In this case, the position is worse inasmuch as the old gold ornaments taken as deposit from strangers are converted into new gold ornaments, accounted as stock-in-trade and then sold to customers. As and when depositor demands return of gold, he is issued new gold ornaments from the stock-in-trade. Since the deposit scheme entitles the petitioner to remake new ornaments with the deposited gold and trade in it, the petitioner gets absolute right over the gold jewellery deposited and so much so, the acceptance of deposit amounts to purchase of the old jewellery by the petitioner. Even though counsel for the petitioner contended that there is no consideration for the purchase, it cannot be accepted because promise to return in the form of new ornament constitutes consideration for the deposit of old gold ornaments. For the purpose of payment of purchase tax, the value of the old gold ornaments accounted at the time of taking the gold under the deposit scheme has to be treated as purchase price.

The next issue to be considered is whether there is sale when the deposit is returned in the form of new gold ornaments from the stock-in-trade. Admittedly, the new ornaments returned are not the old ornaments deposited or new ornaments made therefrom, but the equivalent quantity from the stock-in-trade. Even though accounting pattern is not stated in the orders, there can be no doubt that when deposit is returned, necessarily depositors'' account gets debited and since return of gold is from new ornaments held as stock-in-trade, the transaction is obviously sale on which tax is payable by the petitioner.

In view of our above findings, we do not find any merit in the revision and the sales tax revision is accordingly dismissed.