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State of Orissa Vs. Divisional Forest Officer, Karanjia Division and ors. - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtOrissa High Court
Decided On
Case NumberS.J.C. Nos. 118, 119, 164, 165, 166, 179,180, 181 and 182 of 1971
Judge
Reported in[1973]32STC487(Orissa)
AppellantState of Orissa
RespondentDivisional Forest Officer, Karanjia Division and ors.
Appellant AdvocateStanding Counsel (Sales Tax)
Respondent AdvocateGovernment Adv. and ;B.K. Pal, Adv.
Cases Referred(Deputy Commercial Tax Officer v. Enfield India Ltd. Co
Excerpt:
.....the state of orissa are exploited either by contractors or the government owned corporation (orissa forest corporation). the railway is interested in buying good sleepers in a convenient way. 5. the tribunal in a well-discussed judgment has indicated the various facets of the matter. from time to time disclosures of documents had been made and a reference to them would clearly indicate that a consistent stand has not always been taken. the chief object of this is to render service to the railways in the wider national interest in supplying the sleepers of good quality and required quantity in time, which could not be attained when the railways were making purchases direct from the contractors. the avowed purpose was to serve the cause of the railways by making good and timely..........the state of orissa are exploited either by contractors or the government owned corporation (orissa forest corporation). the railway is interested in buying good sleepers in a convenient way. the forest department of the state of orissa is interested in seeing that its products are marketed. the government of orissa and the railway administration entered into an arrangement by which divisional forest officers in the employment of the state of orissa within their respective jurisdictions were allowed to obtain sleepers from contractors within their respective areas, pay for them on behalf of the railways from out of the advances received and supply the same in turn to the railway administration.the divisional forest officers of karanjia, keonjhar and the district forest officer of.....
Judgment:

R.N. Misra, J.

1. In S.J.C. Nos. 118 and 119 of 1971 and 179 to 182 of 1971, only one question has been referred for determination of this court, namely:

Whether, on the facts and in the circumstances of case, it is correct for the Tribunal to hold that the assessee does not become a 'dealer' under the Central Sales Tax Act ?

In the remaining cases, over and above the aforesaid question, one more question has been referred, namely :

Whether, in the facts and circumstances of the case, the Tribunal is right in holding that the assessee-opponent is not a 'dealer' in the face of the 'D' form declaration obtained from the railway to claim concessional rate of tax in inter-State transactions.

2. The relevant facts for answering the questions referred to us, which we have collected from the statement of facts in several of these cases and a judgment delivered by this court, in a connected writ petition, are these : For the purposes of maintaining the railway track, Indian Railways required sleepers. Forests within the State of Orissa are exploited either by contractors or the Government owned corporation (Orissa Forest Corporation). The railway is interested in buying good sleepers in a convenient way. The forest department of the State of Orissa is interested in seeing that its products are marketed. The Government of Orissa and the railway administration entered into an arrangement by which Divisional Forest Officers in the employment of the State of Orissa within their respective jurisdictions were allowed to obtain sleepers from contractors within their respective areas, pay for them on behalf of the railways from out of the advances received and supply the same in turn to the railway administration.

The Divisional Forest Officers of Karanjia, Keonjhar and the District Forest Officer of Balliguda were held to be dealers carrying on business of buying and selling sleepers. Assessments were made under the Orissa Sales Tax Act (hereinafter called the Orissa Act) in respect of the intra-State sales between the contractors on the one side and the respective forest officers on the other, treating the contractors as dealers. Assessments were also made under the Central Sales Tax Act (hereinafter called the Central Act) in respect of the sales made by the forest officers to the railway administration.

We are told by counsel appearing in these cases that the assessment under the Orissa Act is not in dispute. In fact, only recently in a case where the Orissa Forest Corporation was the assessee, we accepted the assessments to be valid under the Orissa Act.

3. In respect of the Central sales tax assessments, the respective forest officers disputed their liability contending, inter alia, that they were not dealers. The first appellate authority in the case of the Divisional Forest Officer of Karanjia had set aside the assessments by finding that he was not a dealer. The State appealed against the said first appellate decision. The first appellate authority in the case of the Divisional Forest Officer of Keonjhar and District Forest Officer of Balliguda upheld the assessments. The respective assessees appealed to the Tribunal.

4. Mr. T.V. Rao, Member of the Tribunal, by his judgment dated 5th January, 1968, set aside the order of the first appellate authority in the case of the Divisional Forest Officer of Karanjia and restored the assessments. At the instance of this assessee references had been made to this court in S.J.C. Nos. 39 and 40 of 1968. The assessee had also filed a writ petition being O.J.C. No. 367 of 1970. By judgment dated 17th April, 1970, a Bench of this Court quashed the appellate decision of the Tribunal as a result whereof the references became infructuous and the second appeals came to be reheard. All these appeals there after were disposed of by the Member, Sales Tax Tribunal, who took the view that the respective forest officers were not dealers under the Act. Thereupon, at the instance of the State of Orissa, these references have been made.

5. The Tribunal in a well-discussed judgment has indicated the various facets of the matter. That the railways is the consumer of sleepers purchased from Orissa is not in dispute. There is also no dispute that the Divisional Forest Officer buys the sleepers, makes payment and there is transference of title in the sleepers from the various contractors to the concerned Divisional Forest Officers. This has been considered to be an intra-State sale exigible to tax under the Orissa Act. In the present case, the assessments under the Central Act are impugned.

The Divisional Forest Officer was contended to be the agent of the Indian Railways. The railways and the forest department did not place all their papers in an attitude of co-operation with the taxing department. From time to time disclosures of documents had been made and a reference to them would clearly indicate that a consistent stand has not always been taken. In view of the questions referred to us, it is not necessary to examine the various other aspects of the matter. We think it appropriate to confine our consideration to the question of the Divisional Forest Officer being a 'dealer'.

6. The scheme under which the forest department of the Government of Orissa agreed to enter into the arrangement with the railways in the matter of supply of sleepers is available from a letter of the co-operation and forest department bearing number 5830 dated 2nd April, 1963, which has been sumptuously referred to by the Tribunal in its second appellate order and a copy of which is also a part of the record made available to this court. In paragraph 1 of the said letter, it is stated :

The department gets back the cost of sleepers from the railways together with a certain percentage of the cost of supplies as overhead charges to meet the supervision and other incidental expenses. The chief object of this is to render service to the railways in the wider national interest in supplying the sleepers of good quality and required quantity in time, which could not be attained when the railways were making purchases direct from the contractors. The transaction is done on no profit and no loss basis...

At another place in the very letter, it has been stated :

As the object of the scheme is to render service without incurring any loss, it is essential to maintain the detailed accounts of all expenses directly connected with this transaction by taking into account the proportionate cost of pay, D.A. and T.A. of the D.F.Os. concerned together with the other incidental charges. At the end of the year, this would give a clear picture of the financial results under the scheme from which it will be easier to know whether the amount received from the railways as overhead charges fully covers such expenditure and the State Government are not called upon to sustain any financial loss in this regard....

Annual conferences were being held from year to year to review the position of supply of sleepers in which the representatives of the railway administration and of the forest department of Orissa used to participate. From the proceedings of the meeting held in October, 1960, it appears:

In addition to the prices of the sleepers, an amount of 5 per cent pf the basic value of the sleepers, excluding inaccessibility allowance, bonus and sales tax will be payable to the forest department to cover the cost of their supervision charges, inspection charges, etc. This 5 per cent may be included in each bill for the passed and accepted sleepers.

Provision was also made therein for issue of 'D' forms by the railway administration.

7. From the letter of the forest department referred to above, it is clear that both parties intended that the supply of sleepers would be made not with a motive of earning any profit. Over and above the price for acquisition, a small percentage was charged more or less by way of handling expenses. Since the forest officers and other employees of the State of Orissa devoted their time and energy in the matter of supervision of acquisition, storage and despatch of sleepers, a part of their salary was also taken into account. A review at the end of the year was contemplated to find out that the State of Orissa sustained no loss on that account. It would not be improper to conclude from these undisputed materials that the parties had entered into the adventure with an avowed intention of 'no profit and no loss' basis. We cannot lose sight of the fact that the contracting parties were not ordinary tradesmen but were two limbs of Government-one of the Central Government and the other of the State Government. The avowed purpose was to serve the cause of the railways by making good and timely supplies of sleepers. The forest department had an interest in the matter because, marketing of its commodity was facilitated.

8. There is possibly no scope for doubt that there was a sale. In the case of State of Madras v. Gannon Dunkerley & Co. [Madras) Ltd. [1958] 9 S.T.C. 353 at 365 (S.C.), the Supreme Court said :

Thus, according to the law both of England and of India, in order to constitute a sale it is necessary that there should be an agreement between the parties for the purpose of transferring title to goods, which of course presupposes capacity to contract, that it must be supported by money consideration and that as a result of the transaction property must actually pass in the goods. Unless all these elements are present, there can be no sale. Thus, if merely title to the goods passes but not as a result of any contract between the parties, express or implied, there is no sale. So also if the consideration for the transfer was not money but other valuable consideration, it may then be exchange or barter but not a sale. And if under the contract of sale, title to the goods has not passed, then there is an agreement to sell and not a completed sale.

Conceding that there was a sale by the Divisional Forest Officer to the railway administration, we have now to examine whether the Divisional Forest Officer was a 'dealer'.

'Dealer' has been defined in Section 2(b) of the Central Act to mean, any person who carries on the business of buying or selling goods and includes a Government which carries on such business.

If the transactions carried on by the Divisional Forest Officer can be said to be business, then obviously all other requirements of the definition are satisfied. The term 'business' has, however, no statutory definition.

As indicated in the case of State of Andhra Pradesh v. Abdul Bakshi and Bros. [1964] 15 S.T.C. 644 (S.C.) by the Supreme Court:.The expression 'business' though extensively used is a word of indefinite import. In taxing statutes it is used in the sense of an occupation or profession, which occupies the time, attention and labour of a person, normally with the object of making profit. To regard an activity as business ther,e must be a course of dealings, either actually continued or contemplated to be continued with a profit-motive and not for sport or pleasure....

This observation was quoted with approval by the Supreme Court in the case of Hindustan Steel Ltd. v. State of Orissa [1970] 25 S.T.C. 211 (S.C.). The court in this case ultimately came to hold that though the transactions had occupied time, attention and labour of the company, yet, in conducting those transactions the company was not a dealer because it had not entered into the field with a profit-motive. It is, therefore, apparent that every seller is not a 'dealer'. Though by satisfying the requirements indicated in Gannon's case [1958] 9 S.T.C. 353 (S.C.) a transaction may be sale and there may be repetitions of such transaction at regular intervals and though time may be spent, attention and labour may be devoted, yet, such sales would not amount to 'business' in the absence of a profit-motive and if the transactions would not amount to 'business', a person carrying on such transactions would not become a 'dealer'.

9. The learned standing counsel relied upon a decision of this court in the case of Indal Employees' Co-operative Society Ltd. v. State of Orissa and Two Ors. [1968] 22 S.T.C. 460, in support of the stand of the taxing department that profit-motive is not an essential ingredient to constitute business. This court in that case stated :

For the petitioner, it was contended that in the Madras Act, the expression 'business' had been defined as meaning any trade, commerce or manufacture whether or not any profit accrued from such trade, etc., but in the absence of such definition in the Orissa Act, the observations of the Supreme Court will not govern the present case. Here also we are unable to agree with the petitioner's contention. It is true that the expression 'business' has not been defined in the Orissa Act, but the question is whether to satisfy the definition of 'dealer', the profit-motive in the activity is essential. In the aforementioned decision, the Supreme Court were interpreting Section 2(g) of the Madras Act defining the expression 'dealer' and in that context held that even in the absence of a profit-motive an activity by a society of supplying goods to its members for a price may be in the nature of trade. Therefore, existence of profit-motive is not essential for creation of a taxable entity. In this view of the matter, we are unable to accept the contention of the learned counsel for the petitioner that in the absence of a motive for profit or gain, by pursuing a particular activity of sale or supplying goods to its members for a price, the co-operative society will not be a dealer as denned and liable to sales tax.

The case of the Supreme Court which has been referred to here is that of Deputy Commercial Tax Officer v. Enfield India Ltd. Co-operative Canteen Ltd. [1968] 21 S.T.C. 317 (S.C.). The Supreme Court had kept in view the definition of 'business' in the Madras General Sales Tax Act, 1959, where by a statutory definition, profit-making motive had been kept away. Admittedly, under the Orissa Act there was no statutory definition of the term. The decision of the Supreme Court in the Madras case (Deputy Commercial Tax Officer v. Enfield India Ltd. Co-operative Canteen Ltd. [1968] 21 S.T.C. 317 (S.C.) therefore, was indeed not of real utility. The impact of the definition of 'business' occurring in the Madras Act on the decision was lost sight of and while dealing with 'dealer' as defined under the Orissa Act, the principles indicated in the Supreme Court decision were applied. The later case of Hindustan Steel Limited [1970] 25 S.T.C. 211 (S.C.) of the Supreme Court is more apposite because the learned Judges were construing the definition of 'dealer' occurring in the Orissa Act where there is no definition of 'business' as in the case of the Central Act. By necessary implication, Indal's case [1968] 22 S.T.C. 460 must be taken to have been reversed by the decision of the Supreme Court in Hindustan Steel's case [1970] 25 S.T.C. 211 (S.C.). On our conclusion that Indal's case [1968] 22 S.T.C. 460 had not been properly decided in view of the latter decision of the Supreme Court, we do not find any need to refer this case for disposal by a larger Bench of this Court nor do we feel bound by that decision. We hold that profitmotive is an essential ingredient to constitute a course of dealings to be 'business'. If the dealings are for sport or pleasure or for any other consideration not baing profit-motive, they would not be 'business'. The Divisional Forest Officers were not carrying on the business of buying and/or selling sleepers to the railway administration. As we have quoted already from the Government letter, the true intention was to carry on the transaction on no profit no gain basis, more for fulfilling an obligation to the Central Government for the better interest of the country. Our conclusion to the first question referred to us, therefore, shall be :

On the facts and in the circumstances of the case, it is correct for the Tribunal to hold that the assessee does not become a 'dealer' under the Central Sales Tax Act.

10. The other question is as to what is the effect of issue of 'D' forms. It is well-known that if there is no liability under the Act, merely because a party had acted under an erroneous basis, from his conduct statutory liability for tax cannot be inferred. Once the assessee is not a 'dealer', merely because, under an arrangement entered into by him with the purchaser, 'D' forms under the Act have been issued, the assessee cannot become a 'dealer' liable to tax under the Act. Our answer to the second question, therefore, shall be :

In the facts and circumstances of the case, the Tribunal was right in holding that the assessee-opponent was not a 'dealer' merely because 'D' form declarations had been obtained from the railway to claim concessional rate of taxation in the inter-State transactions.

11. Here is a case of inter-departmental rivalry. If tax were exigible, it was to be paid by the forest department to the commercial taxes department. We really see no justification as to why the two departments of Government had not been able to settle their dispute on the administrative basis and the matter had to be thrashed out by such a long-drawn process, wasting time and energy of public officers. Since any direction for payment of costs would add to the futility, we refrain from making any such direction.

12. Before we part, we must dispose of what had been reserved by an earlier direction in this court to be dealt with in the final order. The railways had applied to intervene. There is no provision for intervention in a reference application and, therefore, we had not allowed intervention. Mr. Pal, appearing for the railways had, however, been heard amicus curiae to assist us in reaching a proper decision in the matter.

B.K. Ray, J.

13. I agree.


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