J.S. Verma, J.
1. By this petition under Article 226 of the Constitution the petitioner challenges imposition of the tax, known as 'entry tax' under the M. P. Sthaniya Kshetra Me Mal Ke Pravesh Par Kar Adhiniyam, 1976 (hereafter referred as the 'Entry Tax Act') for the calendar years 1977 and 1978, on the purchase of iron and steel required by the petitioner for construction of its buildings. The short question for decision in this petition is whether the purchase of iron and steel by the petitioner during this period for this purpose was in the course of its business of manufacturing cement, when the petitioner's factory commenced production of cement only from November, 1980. By orders (annexures C and D) dated 28th December, 1981 pertaining to the two calendar years 1977 and 1978, the Assistant Commissioner of Sales Tax, Satna (M. P.), has held that the petitioner is liable to pay entry tax on this material to the extent specified therein. It is the quashing of these two orders of assessment, which is sought in this petition.
2. It is not disputed that the business of the petitioner is manufacture of cement in its factory at Maihar and the manufacture of cement therein commenced from November, 1980 and that the purchase of iron and steel during the calendar years 1977 and 1978, on which entry tax has been imposed by the impugned orders of assessment, was for the purpose of construction of buildings of the petitioner prior to the commencement of its business of manufacturing cement. As earlier stated, the question is whether entry tax could be imposed on the purchase of iron and steel for use in construction of the petitioner's buildings prior to the commencement of its business of manufacture of cement.
3. Learned counsel for the petitioner places reliance on two Division Bench decisions of this Court, reported in Commissioner of Sales Tax v. Shree Synthetics Ltd., Ujjain  49 STC 22 ; (1981) 14 VKN 274 and Commissioner of Sales Tax v. Satna Cement Works (1984) 17 VKN 260, in which it was held that in these circumstances, no entry tax could be recovered on the building material purchased by the assessee. The learned Deputy Advocate-General has attempted to distinguish these decisions on the ground that the definition of 'business' contained in Section 2(bb) of the M. P. General Sales Tax Act, 1958 retrospectively with effect from 15th April, 1965 has not been noticed in these two decisions. There is no dispute that unless there is such a distinction present, in view of the earlier Division Bench decisions, the petitioner's contention has to be accepted.
4. Reference may now be made to the relevant statutory provisions. Section 3 of the Entry Tax Act lays down the incidence of taxation. Clause (a) of Sub-section (1) therein provides for levy of entry tax on the entry 'in the course of business of a dealer' of goods specified in Schedule II, into each local area for consumption, use or sale therein. Section 2(2) of the Entry Tax Act provides that all those expressions which are used but are not defined in this Act and are defined in the Sales Tax Act shall have the meanings assigned to them in that Act. The expression 'business' is not defined in the Entry Tax Act and, therefore, for the purpose of construing the same as used in Section 3 of the Act, reference has to be made to the definition of the expression 'business' given in Section 2(bb) of the M. P. General Sales Tax Act, 1958. This is the significance of the definition of 'business' contained in Section 2(bb) of the Sales Tax Act, since the real question for decision in the present case is whether entry of iron and steel brought within the local area by the petitioner for construction of its buildings was 'in the course of business'. Section 2(bb) of the M. P. General Sales Tax Act, 1958 as it exists after the amendment made by M. P. Act No. 19 of 1979 retrospectively with effect from 15th April, 1965 is as under :
2. (bb) 'Business' includes--
(i) any trade, commerce, 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 with a motive to make gain or profit and whether or not any gain or profit accrues from such trade, commerce, manufacture, adventure or concern and irrespective of the volume, frequency, continuity or regularity of such trade, commerce, manufacture, adventure or concern ;
(ii) any transaction of sale or purchase of goods in connection with or incidental or ancillary to the trade, commerce, manufacture, adventure or concern referred to in Sub-clause (i), this is to say,--
(a) goods of the description referred to in Sub-section (3) of Section 8 of the Central Sales Tax Act; 1956 (No. 74 of 1956) whether or not they are specified in the certificate of registration, if any, of the dealer under the said Act and whether or not they are in their original form or in the form of second-hand goods, unserviceable goods, obsolete or discarded goods, mere scrap or waste material ; and
(b) goods which are obtained as waste products or by-products in the course of manufacture or processing of other goods or mining or generation of or distribution of electricity or any other form of power.
5. Both the aforesaid Division Bench decisions have held that purchasing of building material for erection of a factory before commencement of the assessee's business cannot be a transaction in connection with or incidental or ancillary to its business of manufacture and, therefore, the building material cannot be treated as purchase 'in the course of business' so as to make it exigible to entry tax. It has been held that the activity of construction undertaken to make a building available for starting the business, therefore, when it actually precedes commencement of the business of the assessee, cannot be said to be 'business' of the assessee. Accordingly, it has been held that where such building activity is prior to commencement of the professed business of the assessee, the transaction is not in the course of its business and is also not incidental or ancillary to the assessee's business, which is a necessary ingredient of the aforesaid definition of 'business'.
6. The learned Deputy Advocate-General has attempted to distinguish both the aforesaid decisions on the ground that the words occurring in Clause (ii) after the words 'this is to say' in Sub-clauses (a) and (b) thereof, have not been noticed. In our opinion, there is no such distinction present. No doubt, the definition of 'business' quoted in Shree Synthetics Ltd.  49 STC 22 ; (1981) 14 VKN 274 does not quote the latter part of Clause (ii), containing Sub-clauses (a) and (b), but this fact alone is not sufficient to indicate that the same was overlooked. That apart, the same does not also make any difference inasmuch as the latter part of Clause (ii) is of no consequence in the present case. It may be mentioned that the requirement of Clause (ii) also is that the transaction should be in connection with or incidental or ancillary to the assessee's business, without which the clause is not attracted. For this reason the test indicated by the Division Bench decisions that the transaction should be at least incidental or ancillary to the professed business of the assessee equally applied to matters covered by Sub-clause (a) therein. We may also observe that Sub-clauses (a) and (b) which alone have been relied on by the learned Deputy Advocate-General, in terms have no application to the facts of the present case, since the goods are not of the description specified therein. The result is that there is no ground on which the aforesaid earlier Division Bench decisions of this Court can be distinguished.
7. As a result of the aforesaid discussion, it must be held, following the aforesaid earlier Division Bench decisions of this Court, that the petitioner was not liable to pay entry tax on the purchase of iron and steel during the calendar years 1977 0and 1978, prior to the, commencement of its business of manufacturing cement and, therefore, the impugned orders of assessment (annexures C and D) are liable to be quashed. It is obvious that no penalty could also be imposed for the same reason.
8. The petition is accordingly allowed. The impugned orders of assessment (annexures C and D) dated 28th December, 1981 are quashed. There will be no order as to costs. The security amount, if any, be refunded to the petitioner.