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Evangelical Literature Service Vs. Commissioner of Commercial Taxes, Board of Revenue - Court Judgment

LegalCrystal Citation
SubjectSales Tax;Civil
CourtChennai High Court
Decided On
Case NumberWrit Petitions Nos. 1161 and 1239 to 1241 of 1962
Judge
Reported in[1964]15STC825(Mad)
AppellantEvangelical Literature Service
RespondentCommissioner of Commercial Taxes, Board of Revenue
Appellant AdvocateJ.S. Athanasius, Adv.
Respondent AdvocateK. Venkataswami, Adv. for ;Additional Government Pleader
DispositionPetition allowed
Cases Referred and Fiaz Ahmed & Co. v. State of Madras
Excerpt:
- - the fact that profit made by the sales, like the other income and property of the society, should not be paid or transferred directly or indirectly by way of dividend or bonus to the members of the society, did not detract from the fact that the society was engaged in sales with a profit motive and, therefore, was a dealer. i fail to see any trade or commercial motive in the objects of the society. the tanners, as was held in that case, were clearly engaged on a commercial purpose and activity......or both. a dealer has been defined by section 2(g) as a 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.4. the expressions 'goods', 'sales' and 'turnover' are also defined in the act. a reading of these definitions will make it plain that, in addition to the activity of buying and selling, to satisfy the definition of a dealer, the transactions should be motivated by a commercial and be of a commercial character. unless the purpose of the activity is essentially commercial, it is not business. it is in that sense the word 'business' is used in the definition of a dealer. so, a dealer under the act is one who is.....
Judgment:
ORDER

Veeraswami, J.

1. The question in these petitions is whether the common petitioner which is Evangelical Literature Service, a Society registered under Act 21 of 1860, is a dealer within the meaning of the Madras General Sales Tax Act. It has been assessed to tax for the years 1954 to 1958 on the turnover of its sales of Bible and other Christian religious books. The Appellate Assistant Commissioner took the view that the petitioner was not a dealer and set aside the assessment orders. The Board of Revenue, however, in exercise of its suo motu powers of revision, differed from the Appellate Assistant Commissioner and restored the orders of assessment. These petitions are to quash the Board's order which is dated 23rd October, 1961.

2. The Appellate Assistant Commissioner relied on rules 3 and 4 of the Memorandum of Association of the petitioner's Society. But the Board's view proceeded on the following reasoning. The petitioner purchased books from foreign countries at a discount and sold them at a profit up to 25 per cent. The fact that profit made by the sales, like the other income and property of the Society, should not be paid or transferred directly or indirectly by way of dividend or bonus to the members of the Society, did not detract from the fact that the Society was engaged in sales with a profit motive and, therefore, was a dealer. The activities of the Society in purchasing and selling books of religious character showed that it engaged itself in the business of buying and selling with a motive to earn profit. On these considerations the Board thought that the petitioner was a dealer within the meaning of the Act chargeable to sales tax on its sales of books.

3. Under the Sales Tax Act it is not every sale or purchase that will be liable to tax. The tax is attracted only by the turnover of a person carrying on a business of buying or selling or both. A dealer has been defined by Section 2(g) as a 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.

4. The expressions 'goods', 'sales' and 'turnover' are also defined in the Act. A reading of these definitions will make it plain that, in addition to the activity of buying and selling, to satisfy the definition of a dealer, the transactions should be motivated by a commercial and be of a commercial character. Unless the purpose of the activity is essentially commercial, it is not business. It is in that sense the word 'business' is used in the definition of a dealer. So, a dealer under the Act is one who is engaged in trade or commerce as such of buying and selling of goods. A continuous conduct of buying and selling and/or presence of motive to make profit, though they are important components, will not, by themselves, be decisive on the question.

5. In this case, the main object of the Society, as seen from the Memorandum of Association and Rules, is what is contained in Article 3(a) namely, printing, publishing and distribution of Christian Literature. The name of the Society, Evangelical Literature Service, is also not without significance on the nature of the object. It is true Article 3(b) which is relied on by the learned Additional Government Pleader states:

To adopt all normal business means for the accomplishment of the objects outlined in the foregoing paragraph, saving that no monies shall be borrowed whether on mortgage or not.

6. But it is noteworthy that Clause (b) itself expressly indicates the intention of adopting such means only for the accomplishment of the object mentioned in Clause (a) of Article 3. If the object of the Society, as it is, is merely to print, publish and distribute Christian literature and is not, as I think, commercial in character, it is obvious that the object does not become commercial because it is to be achieved by the normal business means. I fail to see any trade or commercial motive in the objects of the Society.

7. Learned Additional Government Pleader draws my attention to the Religious Tract and Book Society of Scotland v. Forbes (1896) 3 Tax. Cas. 415 and Fiaz Ahmed & Co. v. State of Madras [1964] 15 S.T.C. 201 and contends that, even though the main object of the Society is to print, publish and distribute Christian literature, its particular activity of purchasing and selling Christian religious books actually making profit will bring the Society within the definition of a dealer. I do not think that the authorities relied on are of assistance to him. The first of them related to a certain deduction for purposes of income-tax, the Court of Exchequer being of opinion that the colportage was not a trade and the loss incurred in connection with it was not deductable for the purpose of income-tax. The other decision is that tanners who purchased raw hides for the purpose of tanning, were dealers liable to tax at the point of purchase. I can see nothing in common between that case and the present one. The tanners, as was held in that case, were clearly engaged on a commercial purpose and activity.

8. I hold that the petitioner is not a dealer within the meaning of the Madras General Sales Tax Act. The assessment made against it are quashed. The petitions are allowed. The petitioner is entitled to costs in one of the petitions and not in others. Counsel's fee Rs. 100.


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