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Board of Trustees of the Visakhapatnam Port Trust Vs. Commercial Tax Officer and anr. - Court Judgment

LegalCrystal Citation
SubjectDirect Taxation
CourtAndhra Pradesh High Court
Decided On
Case NumberW.P. Nos. 3107 to 3112 of 1976
Reported in(1977)6CTR(AP)200
AppellantBoard of Trustees of the Visakhapatnam Port Trust
RespondentCommercial Tax Officer and anr.
Excerpt:
- all india services act, 1951.sections 8 & 11 & a.p. buildings (lease, rent and eviction) control rules, 1961, rule 5: [v.v.s. rao, g. yethirajulu & g. bhavani prasad, jj] refusal by landlord to receive rent - deposit of rent in court - held, a tenant has the option to take recourse to section 8 in case of refusal or evasion by landlord to receive rent and if landlord were to not name a bank or refuse even the money order of rent, the tenant can deposit the rent in accordance with sub-rules (1) to (3) of rule 5. the notice to person entitled to rent and proper maintenance of accounts of such deposits under sub-rules (4) and (5) of rule 5 are solely dependent on compliance with sub-rule (3) by the tenant. the payment or deposit of rent under section 11 read with sub-rule (6) of rule 5.....b. j. divan, c.j. - the same question arises fir determination in each of these matters. the petitioner in each of these writ petitions is the board of trustees of the visakhapatnam port trust. the main question which arises for determination in these cases is whether the board of trustees can be said to be a dealer within the meaning of section 2(c) of the andhra pradesh general sales tax act, 1957 (hereinafter referred to as the act). the sales-tax authorities have held that the board of trustees is a dealer and, on that footing, proceeded to assess the board of trustees to sales-tax for the different assessment years 1969-70 to 1974-75. the sales-tax authorities have assessed or proposed to assessee the board of trustees to sales-tax in respect of several commodities in which,.....
Judgment:

B. J. Divan, C.J. - The same question arises fir determination in each of these matters. The petitioner in each of these writ petitions is the Board of Trustees of the Visakhapatnam Port Trust. The main question which arises for determination in these cases is whether the Board of Trustees can be said to be a dealer within the meaning of Section 2(c) of the Andhra Pradesh General Sales Tax Act, 1957 (Hereinafter referred to as the Act). The Sales-tax authorities have held that the Board of Trustees is a dealer and, on that footing, proceeded to assess the Board of Trustees to Sales-tax for the different assessment years 1969-70 to 1974-75. The sales-tax authorities have assessed or proposed to assessee the Board of Trustees to sales-tax in respect of several commodities in which, according to those authorities, the Board of Trustees have been dealing from time to time. The commodities on which the sales-tax has been assessed or proposed to be assessed are as follows :

(a) supply of water to visiting vessels;

(b) banking of visiting vessels with liquid fuel;

(c) offering of tender document for a consideration to prospective contractors;

(d) supply of water and issue of stores to accepted contractors;

(e) supply of water and issue of stores to its own engineers and staff; and

(f) disposal of unserviceable material or surplus material by auction or by inviting tenders.

It is the contention for the petitioner in each of these writ petitions that it is not a dealer and that, under the scheme of the Act, since sales-tax can be assessed only in respect of turnover of a dealer, the proceedings of the sales-tax authorities should be quashed and set aside. On the other hand, the contention of the Revenue in the counter-affidavit is that each of these writ petitions should be dismissed in limine. In the common counter-affidavits filed on behalf of the respondent in each of these writ petitions, it is contended that the question whether a transaction amounts to a sale taxable under the Act, or not is a question of fact to be decided by the Sales-tax authorities and cannot be agitated in a writ petition. It is contended by the deponent of the common counter-affidavit, Mr. A. Lokendar Reddy, Commercial Tax Officer, Company Circle, Visakhapatnam, that the assessment for the year 1969-70 was over and that an appeal is pending before the Assistant Commissioner. For the assessment years 1970-71 to 1974-75, only show-cause notice were issued. Before issuing the notice, the deponent as well as the Commercial Tax Officer, Visakhapatnam, who completed the assessment for 1969-70, had personally contacted the petitioners several times and requested them to produce their books for verification. The petitioners had neither furnished any information nor given any co-operation for verification of their accounts and therefore the Department had to proceed with such materials as they could get including the Administration Report and the Annual Accounts published by the petitioners. It is contended by the dependant of the counter affidavit that the question whether the transactions in a particular case are sales within the meaning of the Sales-tax Act is mixed question of fact and law and that the High Court should not get into the questions of fact particularly when law prescribes a procedure for ascertaining those facts. As regards each of these commodities for which the petitioner is assessed or is proposed to be assessed, the deponent of the counter-affidavit contends that it should be decided upon by the sales-tax machinery alone.

2. Mr. Subrahmanyam on behalf of the petitioner contends that, before the question whether any particular commodity is or is not liable to sales-tax can be decided, it must first be found that the proposed assessee is a dealer, because under S. 5 of the Act, levy of tax on sales or purchases of goods is only in respect of turnover of a dealer, S. 5 is the charging section and sub-section (1) of S. 5 provides :

'Every dealer other than a casual trader and an agent of a non-resident dealer whose total turnover for a year is not less than Rs. 25,000/- and every agent of a non resident dealer, whatever be his turnover for the year shall pay a tax for each year, at the rate of four paise on every rupee of his turnover. Every casual trader shall pay a tax at the rate of four paise on every of his turnover. Every casual trader shall pay a tax at the rate of four paise on every rupee of his turnover.'

We are not concerned with the rest of the provisions of S. 5, because it clear that it is only a dealer, be he a casual trader or an agent of a non-resident dealer as defined by the Act, who is liable to be assessed to sales tax. In this connection, it is worthwhile referring to several decisions of the different High Courts and the Supreme Court on the question as to what the High Court can do and should do when the question whether a particular assessee is a dealer or not arises.

3. In Tata Engineering and Locomotive Company Ltd. vs. The Assistant Commissioner of Commercial Taxes Hidaytulla, J., (as he then was), speaking for the Supreme Court, observed at page 524 of the report.

'The power and jurisdiction of the High Court under Article 226 of the constitution has been the subject of exposition from this Court. That this extra-ordinary jurisdiction has to be used sparingly goes without saving. In spite of the very wide terms in which this jurisdiction is conferred, the High Court have rightly recognised certain limitations on this power. The jurisdiction is not appellate and it is obvious that it cannot be substitute for the ordinary remedies at law. Nor is its exercise desirable if facts have to be found or evidence. The High Court, therefore, leaves the party aggrieved to take recourse to the remedies available under the ordinary law if they are equally efficacious and declines to assume jurisdiction to enable such remedies to be by-passed. To these there are certain exceptions. One such exception is where action is being taken under an invalid law or arbitrarily with the sanction of law. In such a case, the High Court may interfere to avoid hardship to a party which will be unavoidable if the quick and more efficacious remedy envisaged by Article 226 were not allowed to be invoked.'

The Supreme Court further observed, on the facts of that particular case, that the High Court ought to have taken jurisdiction in the case at least to issue a rule nisi to see what the assessing authority had to say.

4. In Andhra Pradesh State Road Transport Corporation vs. Commercial Tax Officer, Madhava Reddy., J., delivering the judgment on behalf of the Division Bench consisting of himself and Chinnappa Reddy., J., after considering the question whether the Andhra Pradesh State Road Transport Corporation was a dealer carrying on business in old or scrapped vehicles and other scrap, came to the conclusion that the Corporation in that case was not a dealer and observed :

'In view of the above, the Commercial Tax Officer was not right in holding that the Andhra Pradesh State Road Transport Corporation was a 'Dealer' carrying on 'business' in the old or scrapped vehicles and other scrap. He was, therefore, not entitled to even provisionally assess it to Sales-tax. The assessment order is, therefore, quashed.'

It is clear, on the plain language of S. 5, that since the liability to pay sales tax arises only if the transactions are of a dealer, the jurisdiction of sales-tax authorities to assess the particular individual to sales-tax can arise only if the proposed assessee is a dealer. This is a charging section and the High Court can always exercise its jurisdiction on the ground that the sales-tax authorities were not entitled to levy tax or initiated any assessment proceedings. The same is the view taken by the Madras High Court in Tirumala Tirupati Devasthanam vs. State of Madras. Ramprasad Rao, J., sitting singly in the Madras High Court observed that the action of the State of Madras in proceeding to levy sales-tax on certain transactions of the Tirumala Tirupati Devasthanam was absolutely illegal and without jurisdiction. The Madras High Court in that case came to the conclusion that, when the Devasthanam realised cash from the sale by public action of articles of silverware etc., deposited in the Hundies, it could not be said that the Devasthanam was doing a business or was indulging in a commercial activity. It is true that Ramprasad Rao., J., was dealing in that particular case with the unamended provisions of the Tamil Nadu General Sales Tax Act; but the principle viz., that, if it is found that the particular transactions are not liable to sales-tax, the action of the sales-tax authorities would be illegal and without jurisdiction, clearly emerges from this decision of the Madras High Court.

5. In Indian Institute of Technology vs. State of U.P., a Division Bench of the Allahabad High Court, held that the Indian Institute of Technology, Kanpur, could not be held to be a 'dealer' within the meaning of S. 2(c) of the U.P. Sales Tax Act, as the principle activity of the Institute was predominently academic and the supply of foodstuffs was minor, subsidiary and incidental to the principal activity and was an integral part of its academic activity and consequently the Sales-tax Officer had no jurisdiction to initiate proceedings for levy of Sales-tax on the petitioner-Institute. We respectfully agree with the view taken by the Division Bench of the Allahabad High Court.

6. As against those decisions cited by Mr. Subrahmanyam, the learned Government Pleader, Mr. D. V. Sastry, has relied on the decision of the Supreme Court in Kamala Mills Ltd. vs. State of Bombay and particularly the observations from pages 621 to 625. Gajendragadkar, C.J., delivering the judgment of the Supreme Court, observed at page 624 :

'In our opinion, it is plain that the very subject of constituting appropriate authorities under the Act is to create a hierarchy of special tribunals to deal with the problem of levying assessment of sales tax as contemplated by the Act. If we examine the relevant provisions which confer jurisdiction on the appropriate authorities to levy assessment on the dealers in respect of transactions to which the charging section applies, it is impossible to escape the conclusion that all questions pertaining to the liability of the dealers to pay assessment in respect of their transactions are expressly left to be decided by the appropriate authorities under the Act as matters falling within their jurisdiction. Whether or not a return is correct; whether or not transactions which are not mentioned in the return, but about which the appropriate authority has knowledge, fall within the mischief of the charging section; what is the true and real extent of the transactions which are assessable; all these and other allied questions have to be determined by the appropriate authorities themselves; and also, we find it impossible to accept Mr. Sastris argument that the finding of the appropriate authority that a particular transaction is taxable under the provisions of the Act, is a finding on a collateral fact which gives the appropriate authority jurisdiction to take a further step and make the actual order of assessment. The whole activity of assessment beginning with the filing of the return and ending with an order of assessment, falls within the jurisdiction of the appropriate authority and no part of it can be said to constitute a collateral activity not specifically and expressly included in the jurisdiction of the appropriate authority as such.'

We are unable to accept the contention of Sri D. V. Sastry urged on behalf of the respondent that these writ petitions should be dismissed in limine, because they seek to challenge the assessment proceedings in respect of the different commodities.

7. The main question at issue in this case is two-fold : (1) Whether the Board of Trustees in a dealer and (2) whether it carries on business in one or the other of the particular commodities in respect of which sales-tax is sought to be levied. In our opinion, Mr. Subrahmanyam is right when he contends that, in view of the charging section, unless a particular assessee is a dealer, the Commercial Tax Officer or the entire Sales-tax machinery set up under the Act has no jurisdiction to assess or collect Sales-tax from him and hence, it is always open to the High Court, in exercise of its jurisdiction under Article 226 of the Constitution, to examine the question whether the Board of Trustees is a dealer or not. If it is held that it is not a dealer, then the proceedings of the Sales-tax authorities will be without jurisdiction and hence they must be quashed.

8. There are two enactment of the Parliament which have a bearing on the question at issue before us, one is the Indian Ports Act, 1908 (Act 5, 1908) and the other is the Major Port Trusts Act, 1963 (Act 38 of 1963). It is worthwhile to point out at the commencement of this discussion that the legislative competence of the Parliament to enact laws in respect of port trusts is derived from item 27 of List-I Union List in the Seventh Schedule to the Constitution, which reads : 'Ports declared by or under law made by Parliament existing law to be major parts, including their delimitation, and constitution and powers of port authorities therein.' The Major Port Trustees Act of 1963 (hereinafter referred as the Act of 1963), as seen from its long time, provides for the constitution of port authorities for certain major ports in India and for vesting the administration, control and management of such ports in such authorities and for matters connected therewith. 'Major Port' under the Act of 1963 has the same meaning as in the Indian Ports Act,1908. It is not in dispute that Visakhapatnam is one of the major ports falling within the definitions of the two Acts. Under S. 3 of the Act of 1963, the Central Government has to cause to be constituted in respect of any major port a Board of Trustees to be called the Board of Trustees of the port. Under S. 5, every Board constituted under the Act is a body corporate having perpetual succession and a common seal with power, subject to the provisions of the Act, to acquire, hold or dispose of property and may, by the name by which it is constituted, sue or be sued S. 42 provides for the performance of services by the Board or other person. It says that a Board shall have power to undertake the different services mentioned in sub-S. (1) and clause (e) of that Sub-section mentions piloting, hauling, mooring, remooring, hooking or measuring of vessels or any other service in respect of vessels.' 'Under S. 35, provisions is made for the Board to execute works and provides appliances. Sub-S. (1) of the said section says that a Board of Trustees may execute such works within or without the limits of the port and provide such appliances as it may deem necessary or expedient. Under Sub-S. (2), such works and appliances may include, among other things, sinking of tube-wells and equipment, maintenance and use of boats, barges and other appliances for the purpose of supply of water at the port. It may also be pointed out that so far as bunkering of vessels with liquid fuel is concerned, under S. 6 of the Act of 1908, power to make Port rules is conferred on the Government and one of the purposes for which rules may be made is for regulating the bunkering of vessels with liquid fuel in any such port and the description of barges, pipe lines or tank vehicles to be employed in such bunkering (see S. 6(1)(eee). S. 48 of the Act of 1963 provides for scales of rates for services performed by the Board for other person and under clause (e) of sub-S. (1) of S. 48, such rates may be in respect of any other service in respect of vessels, passengers or goods excepting the services in respect of vessels for which fees are chargeable under the Indian Ports Act. Under Sub-S. (2), different scales and conditions may be framed for different classes of goods and vessels. Under Sub-S. (1) of S. 54, whenever the Central Government considers it necessary in the public interest to do, it may, by order in writing together with a statement of reasons therefore, direct any Board to cancel any of the scales in force or modify the same within such period as that Government may specify in the order. Under sub-S. (2) of the said section if the Board fails or neglects to comply with such direction within the specified period under sub-S. (1), the Central Government may cancel any of such scales or make such modifications therein as it may think fit. Thus, it is clear that the rates to be charged for the services rendered by the Board of Trustees are subject to the control of the Central Government.

9. As we have pointed out, earlier the different materials in respect of which the Board of Trustees is sought to be assessed to Sales-tax are supply of water to visiting vessels : bankering of visiting vessels with liquid fuel; offering of tender documents for a consideration to prospective contractors; supply of water and issue of stores to accepted contractors; supply of water and issue of stores to its own engineers and staff; and disposal of unserviceable material or surplus material by auction by inviting tenders. We wish to make it clear that we are not expressing any opinion on the merits of any particular commodity,. But in order to examine the question whether the Board of Trustees is a dealer or nor, it is worthwhile to bear in mind that, in respect of supply of water to visiting vessels and bunkering of visiting vessels with liquid fuel the Board of Trustees is rendering service to the Board of Trustees is rendering service to the different vessels and such supply of water to visiting vessels and bunkering of visiting vessels with fuel is a statutory obligation on the Board of Trustees. The rates to be charged are prescribed by the Board subject to the over all supervision of the Central Government.

10. It is true, as observed by the Supreme Court in Oil and Natural Gas Commission vs. State of Bihar that statutory orders regulating the supply and distribution of goods by and between the parties under Control Orders in a State do not absolutely impinge on the freedom to enter into contract and transfer of property which constitutes the agreement in spite of the compulsion of law, is neither void nor voidable. It is not as a result of coercion. The statute supplies the consensus and the modality of consensus is furnished by the statute. There is privity of contract between the parties. In the light of this authoritative pronouncement of the Supreme Court, the fact that the Board of Trustees is compelled by statute to render service particularly to visiting vessels is totally immaterial for deciding the question whether the different commodities in which the Board of Trustees have been dealing are liable to the assessed to sales-tax. But this decision cannot help us in deciding the major question viz., whether the Board of Trustees is or is not a dealer.

11. Under S. 2(e) of the Act, dealer means any person who carries on the business of buying, selling, supplying or distributing goods, directly or otherwise, whether for cash, or for deferred payment, or for commission, remuneration or other valuable consideration and includes the Central Government, a State Government, local authority, a company, a Hindu undivided family or any society (including a co-operative society), club, firm or association which carries on such business. Under S. 2(1)(bbb), business includes any trade, commerce or manufacture or any adventure or concern in the nature of trade, commerce or manufacture whether or not such trade, commerce, manufacture, adventure or concern is carried on or undertaken with a motive to make gain or profit and whether or not any gain or profit accrues therefrom.

12. Mr. Sastry has drawn our attention to the facts that sub-S. (31) of S. 3 of the General Clauses Act, 1897, and 3(17) of the Andhra Pradesh General Clauses Act defines local authority to mean a Municipal Committee, a District Board, a body of Port Commissioners. It is therefore clear that if the Board of Trustees of the Port Trust is carrying on business of buying and selling goods, then it can come within the definition of the word dealer by virtue of S. 2(1)(e) of the Andhra Pradesh General Sales-tax Act. It must be pointed out that, in Dist. Controller of Stores vs. The Assistant Commercial Taxation Officer, the Supreme Court has held that the Railway, since it is concerned in the activity of transportation, is engaged in commerce within the meaning of clause (1) of S. 2(cc) of Rajasthan Sales-tax Act. The definition which was before the Supreme Court in Dist. Controller of Stores vs. The Assistant Commercial Taxation Officer, is practically in the same terms as the definition before us so far as the word business is concerned and even the definition of the word dealer is on the same lines as the definition of the word (dealer before us. At page 424 of the report, Mathew, J., delivering the judgment of the Supreme Court, pointed out :

'We also think that there is no fallacy in thinking that the Railway since it is concerned in the activity of transportation is engaged in commerce within the meaning of clause (i) of the definition and that the sale of unserviceable materials and scrap-iron, etc., is transaction in connection with or ancillary to such commerce within the clause (ii) of that definition.'

Mr. Sastry is right in pointing out to us that, in the United States, particularly, commerce is understood to include the transportation of persons and property, for example, in United States of America vs. Dan Hill, it has been pointed out by Justice Day, speaking for the Court :

'From any early day such commerce has been held to include the transportation of persons and property no less than the purchase, sales, and exchange of commodities.'

In Mondou vs. New York, New Haven & Hartford Railroad Co., Justice Van Devanter, speaking for the Supreme Court of America, observed at page 344 of the report :

'The term 'commerce' comprehends more than the mere exchange of goods. It embraces commercial inter-course in all its branches, including transportation of passengers and property by common carriers whether carried on by water or by land.'

It is not unlikely that Mathew, J., when he spoke for the Supreme Court it Dist. Controller of Stores vs. The Assistant Commissioner Taxation Officer, had this interpretation of the word commerce in Mondou vs. New York, New Haven & Hartford Railroad Co., in view, while observing that the Railway, since it is concerned in the activity of transportation, is engaged in commerce. It is true that the Port Trust authorities are in some way connected with transportation of goods or passengers, unlike railways. The facilities for transport of goods and services are provided by the Board of Trustees; but the Board of Trustees itself is not concerned in the transportation of goods. Whatever services it provides are for the purpose of facilitating the easier flow of goods and passengers. It does not carry any goods or passengers itself. That basic distinction should be borne in mind when dealing with Board of Trustees as distinguished from Railway.

13. However, in the alternative, Mr. Sastry appearing on behalf of the Government relied upon another paragraph in the Judgment of Mathew, J., in Dist. Controller of Stores vs. The Assistant Commercial Taxation Officer. The paragraph is in this manner :

'We think that the activity of the appellant in the selling of unserviceable material and scrap-iron etc., would be 'business' within clause (i) of the definition of the word 'business' introduced by the amending Act. The word 'business' according to clause (i) of that definition would include any trade commerce, or manufacture or any adventure or concern in the nature of trade, commerce or manufacture whether or not it is carried on with a motive to make gain or profit. So even if it be assumed that the activity involved in selling unserviceable material and scrap iron, etc., would not amount to carrying on business in the normal connotation of that term, it would be 'business' within clause (i) of that sub-clause as introduced by the amending Act.'

Now, so far as the different types of activities of the Board of Trustees, which are sought to brought to sales-tax are concerned it is obvious that the supply of water to visiting vessels and bunkering of visiting vessels with liquid fuel at specified rates approved by the Central Government are not activities which can be said to be connected with commerce or business dealings of the Port Trust. These are services facilitating the smooth flow of goods and passengers and to enable the ships calling at the Port of Visakhapatnam to have proper water facilities and liquid fuel facilities at the Port. In our opinion, at least these two activities cannot be said to be connected with commerce or business dealings of the Board of Trustees. It is difficult to accept the argument put forward on behalf of the Government that, when the Board of Trustees provides these two services viz., supply of water to visiting veessels and bunkering of visitings vessels with liquid fuel, it is carrying on any business as such. Even though the element of profit motive may not be present in order to amount to business, it must amount to business within the meaning of clause 2(1)(bbb) of the sales Tax Act. But in order to render the Board of Trustees liable, it must be a dealer who carries on the business of buying, selling, supplying or distributing goods and though the word business will have a very wide meaning, it cannot be said the Board of Trustees carried on any business even in the widest definition in S. 2 (1)(bbb). After the amendment of the definition in S. 2(1)(bbb) by the Amendment Act of 1966, the element of motive to make gain or profit cannot be considered to be a factor so far as the definition of business is concerned, but in any event, it must be trade, commerce or manufacture before it could be said to be a business and we are unable to accept the contention of the learned Government Pleader that what the Board of Trustees is doing is commerce in the sense of transport activities. It must be emphasised that the Board of Trustees is not carrying on any activity by itself.

14. Under these circumstances, we are unable to accept the contention urged on behalf of the Government that the Board of Trustees is a dealer in any particular goods or services.

15. It may be pointed out that the question in connected scrap material has been dealt with by two earlier decisions of the Supreme Court and neither of those decisions has been distinguished or set aside by any subsequent decision of the Supreme Court. In State of Gujarat vs. Raipur ., it was held by the Supreme Court that where a company carrying on the business of manufacturing and selling cotton textiles, disposes of discarded items such as stores, machinery, iron scrap etc., it cannot be said to carry on the business of selling those items of goods. It was observed by Shah, J. (as he then was), speaking for the court :

'We may now consider whether the turnover from the goods sold by the Company was taxable. The goods sold broadly fall, as already observed, under these heads, viz., old discarded machinery stores and scrap and miscellaneous goods; coal and by-products and subsidiary products such as kolsi and waste caustic liquor, though not usable by the factory, are goods regularly and continuously is produced in its manufacturing processes and continuously is produced in its manufacturing processes. We are unable to hold that in disposing of miscellaneous old and discharged items such as stores, machinery, iron scrap, cans, boxes, cotton ropes, rags etc., the Company was carrying on business of those items of selling goods. These sales were frequent and the volume was large, but it cannot be presumed that when the goods were acquired there was an intention to carry on the business in those discarded materials, nor the discarded goods, by-products or subsidiary products of or arising in the course of the manufacturing process. They are either fixed assets of the Company or are goods which are incidental to the acquisition or use of stores or commodities consumed in the factory. These goods are sold by the company for a price which goes into the profit and loss account of the business and may indirectly be said to reduce the cost of production of the principal item, but on that account disposal of those goods cannot be said to become part of or an incident of the main business of selling textiles.'

Again it was observed at page 11 of the report :

'Mere sale of commodity which a company requires for the purpose of its business and which has been purchased for use in that business will not justify an interference that a business of selling that commodity was intended, unless there are circumstances existing at the time when the commodity was purchased or which have come into existence later which establish such an intention.'

This decision of the Supreme Court was followed and accepted by the subsequent decision of the Supreme Court in State of Tamil Nadu vs. Burmah Shell Co. Ltd. At page 432 of the report, Jaganmohan Reddy, J., speaking for the Supreme Court, observed, with reference to the decision in State of Gujarat vs. Raipur Manufacturing Co.

'In that case, as already pointed out, what was held under the analogous Bombay Sales Tax Act, which was similar to that under the Madras Sales Tax Act, prior to its amendment in 1964, the sale of scrap does not necessarily lead to an inference that business which was an element in determining the liability of the dealer for the turnover in such goods was intended to be carried on in those goods. This court had observed, it cannot be presumed that when the goods are acquired, there was an intention to carry on business in those discarded materials nor the discarded goods by-products or subsidiary products or are produced in the course of manufacturing process; that they are either fixed assets of the company or are goods which are incidental to the acquisition or use of stores or commodities consumed in the factory and that when these go into the profit and loss account of the business and may indirectly be said to reduce the cost of production of the principal item, the disposal of those goods on the account cannot be said to be part of or incidental to the main business of selling textiles. As the scrap in that case was not held to be incidental to the acquisition for use of stores or commodities consumed in the factory, the turnover was not included but in the case of caustic liquor which is regularly and continuously accumulated in the tanks in the process of mercerisation of cloth, this Court held that being a waste material it has still a market amongst other manufacturers or launderes as by products or subsidiary products in the course of manufacture, and the sale thereof is incidental to the business of the Company.'

16. In view of these two decisions of the Supreme Court, it is obvious that it must first be found that a particular assessee under consideration is carrying on business and if the assessee is selling scrap materials, the items must have been acquired with the intention of carrying on business. In the instant case, it is not possible for us, in view of what has been discussed above, to held that the Board of Trustees is carrying on any business or is a dealer and, therefore, it is not possible for us to hold that the sale or surplus material or sale of scrap amounts to carrying on any business and hence the amounts realised by disposal of unserviceable or surplus material by auction will not be liable to Sales-tax.

17. As regards offering of documents when tenders are invited, it is not incidental to the business of the Board of Trustees, because when the Board of Trustees is not carrying on any business. We fail to see how charging of fees for supply of tender forms and tender specifications can amount to carrying on business in that commodity even with the widest meaning of the term business.

18. Supply of water and issue of stores of accepted contractors for the purpose of carrying out the works entrusted to such contractors again cannot amount to any sale by the Board of Trustees nor can it be said that the Board of Trustees is dealing in any commodity or is carrying on any business.It is merely facilitating the execution of the projects entrusted to the contractors by supply of water or issue of stores.

19. The last item viz., supply of water and issue of stores to its own engineers and staff by the Board of Trustees can never amount to carrying on any business because, by supplying water and issuing stores again, the Board of Trustees is facilitating its own work. Hence on that ground the Board of Trustees cannot be said to be carrying on any business activity within the meaning of S. 2(1)(bbb) of the Act before us.

20. We have approached this case from both angles viz., from the angle whether, under its constitution under the two Acts, one of 1908 and the other of 1963, the Board of Trustees can be said to be a dealer in the sense of carrying on any trade of or commerce and our conclusion is that it is not a dealer. We have examined the different activities in respect of which the sales-tax is sought to be levied with a view to find out whether the Board of Trustees can be said to be carrying on any business activity in any of these heads which are sought to be brought to tax. In any event, the Board of Trustees cannot be said to be a dealer nor can any of these activities be said to amount to carrying on business in any sense of the term defined under S. 2 of the Act. Under these circumstances, the contention urged on behalf the Government that the Board of Trustees is a dealer and is carrying on business is one or the other of the particular commodities in respect of which sales-tax is sought to be levied, is rejected.

21. We, therefore, allow each of writ petitions and hold that it is not open to the sales-tax authorities to proceed against the Board of Trustees in respect of any of the transactions sought to be brought within the purview of the sales-tax. The relief prayed for in each of these writ petitions is therefore granted. The respondent will pay the costs of the petitioner in each of these writ petitions. Rule nisi is made absolute accordingly in each of these writ petitions. Advocates fee of Rs. 150/- in each.


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