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TMI Blog1997 (8) TMI 445X X X X Extracts X X X X X X X X Extracts X X X X ..... questions of law in the negative and against the respondent. X X X X Extracts X X X X X X X X Extracts X X X X ..... lly correct in holding that in respect of the transactions in spare parts and sale of fuel, oil, etc., at cost the assessee is not a dealer as per section 2(c) of the Orissa Sales Tax Act, 1947. (b) Whether, on the facts and in the circumstances of the case, the Member, Additional Sales Tax Tribunal, is correct to hold that purchases of new spare parts and accessories of such vehicles as Ford, Chevrolet, Despot, Dodge, etc., were not made with an intention to carry on business of selling the same. (c) Whether, on the facts and in the circumstances of the case, the Member, Additional Sales Tax Tribunal, is legally correct to hold that the assessee is not a dealer as per section 2(c) of the Orissa Sales Tax Act, 1947 in respect of the sale ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... requency, continuity and regularity of transaction of purchase and sale in a class of goods and the transactions must ordinarily be entered into with a profit-motive. In other words irregular sales of small quantities of old discarded goods could not be regarded as carrying on of a business activity. Volume, frequency, continuity, etc., of purchase and sales in those items was the determining factor. This principle has been followed by the Andhra Pradesh High Court in Andhra Pradesh State Road Transport Corporation, Hyderabad v. Commercial Tax Officer [1971] 27 STC 42 and the State of Andhra Pradesh v. Andhra Pradesh State Road Transport Corporation [1989] 74 STC 336. 8.. The relevant provisions of the Orissa Act are first required to be e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 (ii) any transaction in connection with, or incidental or ancillary to such trade, commerce, manufacture, adventure or concern." 9.. The decision of this Court in Raipur Manufacturing Co. Ltd. case [1967] 19 STC 1 cannot be made applicable here. In that case this Court considered the volume, frequency, continuity and regularity of transactions of purchase and sales being an important element in determining whether a business was being carried out apart from the element of profit making being there. Hence in the Orissa Act t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... "business" in the Madras General Sales Tax Act had done away with motive for making profit as being a relevant consideration in determining whether the assessee carried on business or not. Section 2(d) of the Madras Act was similar to the present definition in section 2(b) of the Orissa Act and it included the words "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 profit accrues from such trade, commerce, manufacture, adventure or concern". In connection with the sale of scrap it was observed at page 433 as follows: "In the view we hold the scrap sold is certainly connected with the business of the company and the turnover in respect of this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nition of the word "business" introduced by the amending Act. This Court held that even if it be assumed that the activity involved in selling unserviceable material and scrap- iron, etc., may not amount to carrying on business in the normal connotation of that term, it would still be business within the meaning of the expression business occurring in the said Act. Such sales were, therefore, to be held to exigible to sales tax. 12.. The definition of the word "business" in the Orissa Act being pari materia with the definition of such expression in the Madras Act as well as the Rajasthan Act, the ratio of the decision in Burmah Shell case [1973] 31 STC 426 (SC) and the District Controller's case [1976] 37 STC 423 (SC) would be clearly appl ..... X X X X Extracts X X X X X X X X Extracts X X X X
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