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TMI Blog1977 (11) TMI 122X X X X Extracts X X X X X X X X Extracts X X X X ..... instance of the Commissioner of Sales Tax. In all these references two common questions have been referred to us and these are as follows: "(1) Whether, on the facts and in the circumstances of the case, the Tribunal has erred in holding that the opponent is not a 'dealer' within the contemplation of section 2(11) of the Bombay Sales Tax Act, 1959, and other provisions of that Act? (2) Whether, on the facts and in the circumstances of the case, the Tribunal has erred in holding that the purchases of material made by the opponent for construction of buildings were not purchases made in the course of its business as a dealer under the sales tax law?" A third question, which we propose to refer as question No. (3), has been referred for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... chases made by the respondents in their turnover of purchases including the purchases of scaffolding materials made by the respondents. The respondents filed appeals against these orders before the Assistant Sales Tax Commissioner, inter alia, contending that the purchases of scaffolding materials were not purchases made by the respondents in the course of business of the respondents, because the said scaffolding materials were capital assets. The Assistant Commissioner negatived that contention and dismissed the appeals. The respondents then preferred second appeals before the Sales Tax Tribunal. The Tribunal following an earlier decision held that the respondents were not dealers within the contemplation of section 2(11) of the said Act a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of the business or goods which form part of the capital assets of the dealer. In Famous Cine Laboratory and Studio Ltd. v. State of Maharashtra[1975] 36 S.T.C. 104., we have reaffirmed the aforestated principle. We find that in the present case the respondents had specifically taken up the contention before the Assistant Commissioner that, as far as the purchases of scaffolding materials were concerned, they were not purchases made by the respondents in the course of their business because the scaffolding materials constituted assets of a capital nature or capital goods as far as the respondents were concerned. This contention was rejected by the Assistant Commissioner. This contention has also been taken by the respondents before the T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d as a dealer on his own application and thereafter it is found that he ought not to have been so registered. As we are of the view that the respondents are dealers within the meaning of the said expression in clause (11) of section 2 of the said Act, it must follow that they were rightly registered and sub-section (5A) of section 22 does not come into play at all. In the result, we answer the questions referred to us as follows: Question No. (1): In the affirmative. Question No. (2): In the affirmative so far as purchases of materials other than scaffolding materials are concerned. Question No. (3): Does not arise. Looking to all the facts and circumstances of the case, there will be no order as to costs and the parties will bear and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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