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Commissioner of Sales Tax Vs. the Cantonment Board - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtAllahabad High Court
Decided On
Case NumberS.T.R. No. 405 of 1976
Judge
Reported in[1979]44STC40(All)
AppellantCommissioner of Sales Tax
RespondentThe Cantonment Board
Appellant AdvocateStanding Counsel
Respondent AdvocateR.C. Sharma, Adv.
Cases ReferredTemple Sri Bankey Behari Ji v. Commissioner of Sales Tax
Excerpt:
- - an appeal filed against the assessment order failed......justified in holding for the assessment years 1965-66, 1966-67 and 1967-68 that the cantonment board, meerut, was not a 'dealer' within the definition of section 2(c) of the u.p. sales tax act in connection with the turnover of sales amounting to rs. 33,814.85, rs. 27,830 and rs. 33,875 respectively for these years 2. although the question framed relates to three assessment years, viz., 1965-66, 1966-67 and 1967-68, a separate reference has been made for each of these years. the present reference is being treated as a reference in relation to the year 1965-66. the dispute relates to the sale of old fallen trees, fruits, grass, night-soil, water and other materials made by the cantonment board, meerut, as also the supply of cement and iron to its contractors for carrying out.....
Judgment:

C.S.P. Singh, J.

1. The Revising Authority, Meerut, has referred the following question of law for the opinion of this Court:

Whether, on the facts and in the circumstances of the case, the Additional Judge (Revisions), Sales Tax, Meerut, was legally justified in holding for the assessment years 1965-66, 1966-67 and 1967-68 that the Cantonment Board, Meerut, was not a 'dealer' within the definition of Section 2(c) of the U.P. Sales Tax Act in connection with the turnover of sales amounting to Rs. 33,814.85, Rs. 27,830 and Rs. 33,875 respectively for these years

2. Although the question framed relates to three assessment years, viz., 1965-66, 1966-67 and 1967-68, a separate reference has been made for each of these years. The present reference is being treated as a reference in relation to the year 1965-66. The dispute relates to the sale of old fallen trees, fruits, grass, night-soil, water and other materials made by the Cantonment Board, Meerut, as also the supply of cement and iron to its contractors for carrying out construction works. In the assessment year 1965-66, the Board had sold fallen trees and timber of the value of Rs. 10,000 and supplied cement, iron and steel to the tune of Rs. 22,201.25 and Rs. 1,630.60 to its contractors. The assessing authority treating the Board a dealer under the Act taxed its turnover. An appeal filed against the assessment order failed. The revision of the Board, however, succeeded. The Judge (Revisions) has taken the view that as the primary function of the Board was to look after the welfare of the area under its jurisdiction, sale of these articles was not carried on by it either as a business or a commercial activity and, as such, the Board could not be a dealer in respect of these sales.

3. The answer to the question referred depends on the fact as to whether the Cantonment Board is a dealer within the meaning of that word as defined in Section 2(c) of the Act. The relevant part of Section 2(c) is in the following terms:

2. (c) 'Dealer' means any person or association of persons carrying on the business of buying or selling goods in Uttar Pradesh....

3. It would be seen that before a person can come under the classification of a dealer, it is not enough that he buys or sells goods in U.P.; he must be conductting that activity as a business. The word 'business' has not been defined in the Act. Section 2(aa), however, defines the business of buying or selling as including such business carried on without the motive of making profit. Business normally means an activity which occupies the time, attention and labour of the person, normally with the object of making profit. The activity must be of sufficient volume, frequency, continuity and regularity.

4. However, in view of Section 2(aa) of the Act, the activity may amount to business even if it is done without the motive of making profit. The Act, thus, does away with one of the essential conditions required for constituting a particular activity as a business activity. This, however, does not mean that every activity of buying and selling done without a motive of profit, would constitute a business. In order to constitute an activity as a business, it must be a commercial activity analogous to that of a trader. The sales made by the Board were incidental to its statutory duty. To use the words of the Supreme Court in the case of Narain Swadeshi Weaving Mills v. Commissioner of Excess Profits Tax [1954] 26 I.T.R. 765 (S.C.)' 'business' connotes some real, substantial and systematic or organised course of activity or conduct with a set purpose'. Sale of trees, etc., by the Board cannot be characterised as being a systematic or organised course of activity, for these sales are sporadic in nature, and not conducted on an organised scale. So far as the supply of cement and iron and steel is concerned, no element of sale was at all involved in these transactions, for these articles appear to have been utilised for the construction works of the Board itself, which were being carried out by the contractors. A Division Bench of this Court in the case of Managing Committee, Temple Sri Bankey Behari Ji v. Commissioner of Sales Tax, U.P. 1971 U.P.T.C. 780 has held that before an activity can come within the purview of a business activity, it must be a commercial activity, and not incidental to the fundamental activity of the assessee. The principle laid down in that case is fully applicable here as the sale of trees, etc., was incidental to the fundamental statutory duty of the Board, which was to provide local administration within the area of its jurisdiction.

5. In view of the conclusions arrived at, the question is answered in the affirmative, in favour of the assessee, and against the department. The assessee is entitled to its costs, which is assessed at Rs. 200.

6. Reference answered in the affirmative.


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