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TMI Blog1978 (3) TMI 195X X X X Extracts X X X X X X X X Extracts X X X X ..... 1. (2) Whether or not sales of unserviceable goods, scraps, discarded and surplus materials were exigible to tax under the Bengal Finance (Sales Tax) Act, 1941, in view of the incorporation of the definition of "business" by an Ordinance promulgated in 1967 (since repealed and saved by West Bengal Act 25 of 1969), the retrospective operation of which was struck down by the Calcutta High Court in the case of Shew Bhagwan Goenka v. Commercial Tax Officer[1973] 32 S.T.C. 368. The facts found and/or admitted are as follows: The assessee is a British company. It was engaged as a constituent of a consortium known as INCON. The consortium entered into a works contract with the Government of India in 1956 for the construction of the steel works ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ision was preferred to the Additional Commissioner of Commercial Taxes, West Bengal, from the order of the Assistant Commissioner. The Additional Commissioner upheld the decision of the Commercial Tax Officer in its entirety, on the basis of the extended definition of the expression "business" in the statute with retrospective effect. Being aggrieved, the assessee filed further revisions before the Member, Board of Revenue, West Bengal. The Board upheld the contentions of the authorities below. The Member considered a judgment of this court in the case of Shew Bhagwan Goenka v. Commercial Tax Officer[1973] 32 S.T.C. 368. , where it was held that the retrospective operation of the amendment of the Act whereby the scope and ambit of the exp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entitled to agitate that a sale within the meaning of the Sales Tax Act must be a sale by a dealer. We are unable to agree with Mr. Dutt. Sale has been defined both in the Indian Sale of Goods Act and in the Bengal Finance (Sales Tax) Act, 1941. The definition in section 2(g) of the Bengal Finance (Sales Tax) Act is as follows: "2. (g) 'sale' means any transfer of property in goods for cash or deferred payment or other valuable consideration, including a transfer of property in goods involved in the execution of a contract, but does not include a mortgage, hypothecation, charge or pledge." Indian Sale of Goods Act defines a contract of "sale" as follows: "4. (1) A contract of sale of goods is a contract whereby the seller transfers or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ief Commercial Superintendent, South Eastern Railway v. Member, Board of Revenue, West Bengal[1973] 32 S.T.C. 171., (i) Board of Revenue v. A.M. Ansari[1976] 38 S.T.C. 577 (S.C.)., (j) Sole Trustee, Loka Shikshana Trust v. Commissioner of Income-tax, Mysore[1975] 101 I.T.R. 234 (S.C.); A.I.R. 1976 On question No. (2), Mr. Dutt contended that in any event it has not been found that the assessee was carrying on business as a dealer of rejected and unserviceable goods, scraps and discarded materials and, therefore, could not be held to be liable to pay sales tax on such sales. In support of his contention, Mr. Dutt cited a decision of the Supreme Court in State of Madras v. K.C.P. Ltd.[1969] 23 S.T.C. 173 (S.C.). In this case, the assessee, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the assessee. The Additional Commissioner proceeded on the basis of the definition of "business" as introduced retrospectively in the statute and, therefore, this relief granted to the assessee was withdrawn. The retrospective operation of the definition having been struck down by this court, the Member ought not to have withheld the relief claimed. The decision of the Calcutta High Court in the case of Shew Bhagwan Goenka[1973] 32 S.T.C. 368. has been approved subsequently in another Division Bench of this Court in Bengal Paper Mill Co. Ltd. v. Commercial Tax Officer[1976] 38 S.T.C. 163; 80 C.W.N. 582. Therefore, in view of the law as it stood at the material time, the sale of these items could not have been made liable to sales tax i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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