CIT vs. Glenmark Pharmaceuticals (Bombay High Court)

Tests laid down to determine when contract manufacturing will amount to a contract of sale for S. 194C TDS

The assessee entered into an agreement with a third party for the manufacture of certain pharmaceutical products under which it provided the formulations and specifications and the manufacturer affixed the trademark of the assessee on the articles produced. The raw materials were purchased by the manufacturer and property in the goods passed to the assessee only on delivery. The agreement was on a principal to principal basis. The AO took the view that the contract was a contract of ‘work’ and tax was deductible at source u/s 194C though the Tribunal upheld the contention of the assessee that the contract involved a sale and did not represent a ‘contract for work’ u/s 194C. On appeal by the Revenue, HELD dismissing the appeal:

(i) A contract for sale has to be distinguished from a contract of work. If a contract involves the sale of movable property as movable property, it would constitute a contract for sale. On the other hand, if the contract primarily involves carrying on of work involving labour and service and the use of materials is incidental to the execution of the work, the contract would constitute a contract of work and labour;

(ii) The argument of the Revenue that the restrictions imposed on the manufacturer to (a) utilise the formula provided by the assessee, (b) affix the trade-mark of the assessee, (c) manufacture as per specifications provided by the assessee and (iii) deal exclusively with the assessee show that the contract is not one of sale is not acceptable because this has not been the understanding of the law at any point of time even by the CBDT and judicial precedents;

(iii) Though a product is manufactured to the specifications of a customer, the agreement would constitute a contract for sale, if (i) the property in the article passes to the customer upon delivery and (ii) the material that was required was not sourced from the customer / purchaser, but was independently obtained by the manufacturer from a third party;

(iv) This position is now statutorily recognized in Expl. (e) to s. 194C inserted by the FA 2009 to provide that the expression ‘work’ shall not include manufacture or supply of a product according to the requirement or specification of a customer by using material which is purchased from a person other than such customer;

(v) On facts, as (i) the agreement was on a principal to principal basis, (ii) the manufacturer had his own establishment where the product was manufactured, (iii) the materials required in the manufacture of the article or thing was obtained by the manufacturer from a person other than the assessee and (iv) the property in the articles passes only upon the delivery of the product manufactured, the contract was one of “sale” and there was no obligation to deduct tax u/s 194C. The fact that the assessee imposed restrictions on the manufacturer as to quality of the goods, user of trade marks etc are merely matters of business expediency.