Value recovered by hospitals towards cost of medicines, implants, stents, lenses and various other charges towards room rent, supply of food cannot be classifiable as sale.

1. Instant Sales Tax Revision Petitions under Section 84 of the Rajasthan Value Added Tax Act, 2003 (for short, ‘RVAT Act, 2003’) read with Section 86 of the Rajasthan Sales Tax Act, 1994 have been filed by the petitioner-Revenue assailing the order impugned passed by the learned Tax Board, Ajmer.

2. All Revision Petitions in the bunch of cases are involving identical questions of law and based on the same set of facts. Therefore, with the consent of learned counsels, the matter is taken up for final disposal. SB Sales Tax Revision PetitionNo.139/2019 is taken up as a lead case for deciding the questions of law which will apply mutatis-mutandis to all the connected Revisions.

3. The matter was heard on the following questions of law:-

“Whether in the facts and circumstances of the case, the learned Tax Board was right in law in deleting the tax and consequential interest as well as penalty on implants, surgical items and medicines sold by the respondents even though the same was falling within the ambit of definition of “sale” as defined under Section 2(35) of the RVAT Act, 2003 ?”

4. Learned counsels appearing for the petitioners-Revenue submitted that under Section 4 of the RVAT Act, 2003, the “levy of tax and its rates” is defined which is to be imposed on the event of sale as defined under Section 2(35) of the RVAT Act, 2003. The particular rate on the given “sale price” as defined under Section 2(36) has to be discharged by the “dealer” as defined under Section 2(11) of the RVAT Act, 2003 on the goods.

It is further submitted that as per Schedule-IV issued under Section 4 of the RVAT Act, 2003 more particularly Entry 86 provides as under:-

“86. Medical equipment/devices and implants including dental implants but excluding Pseudophakic Intra Ocular lens__

1. Substituted by clause (iii) of Notification No.F.12 (23) FD/Tax/2015-198 dated 09.03.2015.

2. Substituted by notification No. F.12 (11) FD/Tax/2016-187 dated 08.03.2016, for expression, Medical equipment/devices and implants other than Pseudophakic Intra Ocular Lens”

5. While relying upon the said Entry 86, it is contended that the medical equipment/devices including dental implants but excluding Pseudophakie Intra Ocular Lens attracts tax at the rateof 5.5% on the sale price. It was further contended that the respondents, who are clinical establishments, nursing homes, hospitals providing health care services to the in-house patients, while selling medical equipment/devices, implants during the course of treatment, surgery, have not discharged sales tax/VAT on the said transactions even though it has been admitted that implants, consumables, drugs, pharma etc. have been sold during the course of treatment.

6. It was further contended that the learned Adjudicating Authority, while relying upon the provisions of Section 2(11) of the RVAT Act, 2003, which defines ‘Dealer’ and Section 2(35) which defines ‘Sale’ which includes any supply or transfer of property in goods during rendering services or in execution of works contract to be a deemed sale and therefore, held respondent liable for payment of VAT. It was further submitted that owing to transparent, broad and inclusive definition of ‘sale’, which was broadened by Article 366(29A) of the Constitution of India, it was obligatory on the part of the respondents to discharge VAT and therefore, they were liable as per Entry 86 under Schedule-IV at the rate of 5.5% or as per applicable rate.

7. Learned counsel for the petitioner-Revenue drew attention of this Court towards the findings arrived at by the learned Appellate Authority which provide as under:-