9911796707
TMI Blog1963 (1) TMI 44X X X X Extracts X X X X X X X X Extracts X X X X ..... 59, assessing the appellant thereunder to tax for the period 1st January, 1957, to 31st March, 1959, under section 18(6) of the new Act. 2.. The non-applicant was not a registered dealer under the old Act nor is he one under the new Act. He has been running a passenger bus service. He also transports manganese ore and also stones for delivery at road-side places. For carrying on these businesses for none of which the non-applicant was required to be registered as a dealer under the old Act, the non-applicant has been maintaining a number of buses and trucks. He has been periodically selling used up motor vehicles and used up parts like tyres. For the assessment period (1st January, 1957, to 31st March, 1959), the non-applicant was held to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g or supplying goods for the purpose of section 2(c) of the old Act and consequently, the non-applicant cannot be regarded as a dealer under the old Act in respect of these transactions. 3.. The following question of law, therefore, arises from this decision of this Tribunal: "Whether under the facts and circumstances of the case, the nonapplicant can be regarded as a dealer under section 2(c) of the C.P. and Berar Sales Tax Act, 1947 in respect of the sales of used up motor vechicles and used up parts like tyres and tubes?" 4.. The aforesaid question of law is, therefore, referred to the Madhya Pradesh High Court for decision under section 44 of the M.P. General Sales Tax Act, 1958, read with section 23 of the C.P. and Berar Sales Tax ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le material. The present reference is at the instance of the Sales Tax Commissioner. 3.. The reference must be answered in the light of our decision in State of M.P. v. Bengal Nagpur Cotton Mills Ltd.[1961] 12 S.T.C. 333. In that case, after referring to the definitions of "dealer" and "sale" given in section 2 of the Act of 1947, we pointed out that under section 5 of the Act sales tax was payable by a dealer on his taxable turnover of the goods specified in the Schedule as liable to tax; that the Act did not impose sales tax on all goods but only on those goods specified in Schedules I and II; that it did not impose the tax on the mere sale or purchase of the goods specified in the Schedules; and that what was taxable under the Act was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther he actually gets profit or loss, which is material." 4.. In the present case, the business of the assessee is not of selling unserviceable or second-hand motor-cars, trucks or motor accessories. The business of Ramdulare Balkishan and Brothers is of providing transport, and operating buses. For this business the assessee has to keep a number of buses and trucks. Some of the vehicles naturally become unserviceable after some years. The tyres, batteries and other motor accessories also become unserviceable after sometime. These vehicles and motor accessories were obtained by the assessee for their own use. They were not obtained with the object of selling them to anyone at profit. Indeed in the sale of this unserviceable and secondhand ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s his business to sell or supply; and so, where a person, though a dealer in respect of certain commodities, effects a sale of a commodity which it is not his business to sell, he is not liable to be taxed under the Act. A similar view has been expressed in Girdharilal Jiwanlal v. Assistant Commissioner of Sales Tax[1957] 8 S.T.C. 732; 1957 N.L.J. 307. In the Bombay case, State of Bombay v. Ahmedabad Education Society[1956] 7 S.T.C. 497; A.I.R. 1956 Bom. 673. , Chagla, C.J., had occasion to construe the definitions of "dealer" and "sale" given in the Bombay Sales Tax Act, 1946, and which definitions were similar to those given in the C.P. and Berar Sales Tax Act, 1947. He said"It is clear from the definition of a dealer that it is not merel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re such that they could be regarded as "an activity in the course of the business of the assessee" and, therefore, the assessee's sales of cattle were part of its business constituting it a dealer within the meaning of the relevant Sales Tax Act. The learned Judges of the Kerala High Court reached the conclusion that they did solely on applying the test of volume, regularity and frequency of sales for determining whether the assessee was or was not a "dealer". But they overlooked the fact that an activity, though continuous, serious and large, could not assume the characteristics of a business unless it was an activity coming within the definition of "dealer" given in the Act. As we have said, the true test is not whether the selling activi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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