9911796707
TMI Blog1981 (10) TMI 166X X X X Extracts X X X X X X X X Extracts X X X X ..... r as per section 2(c) of the Orissa Sales Tax Act, 1947?" In S.J.C. Nos. 194-196 of 1977, two questions have been referred, namely: "(1) 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 assessories of such vehicles as Ford, Chevrolet, Desoto, Dodge, etc., were not made with an intention to carry on business of selling the same? (2) 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 sales turnover of unutilised new spare parts?" 3.. The asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stituted business and amounted to sale. The assessee, therefore, was not a dealer under the Act and could not have been assessed to tax. The first appellate authority sustained the demand. The Additional Tribunal in second appeal, however, held that the assessee was not a dealer and there was no scope for raising any tax demand. Out of these second appellate orders, the two sets of questions arise. 5.. It is not disputed that the units of the assessee-company adjusted the value of fuel and lubricants drawn from different units by treating them as sale. It was, however, a case of book adjustment. It is also not disputed that the units belong to the company. Whatever may have been the mode of adjustment, unless a sale takes place, tax is no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... siness occurring in section 2(b) was substituted with retrospective effect. The amended definition reads thus: 'Business' includes- (i) any trade, commerce or manufacture or any adventure or concern in the nature of trade, commerce or manufacture, 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 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." "Dealer" in section 2(c) was defined to mean: "Any person who carries on the business of purchasing or selling or supplying goods ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... trade, commerce or manufacture is carried on, it would constitute business. As has been pointed out by another three-Judge Bench of the Supreme Court in the case of Board of Revenue, Andhra Pradesh v. A.M. Ansari [1976] 38 STC 577 (SC), notwithstanding the deletion of the profit-motive, the other ingredients of the term "business", namely, volume, frequency, continuity and regularity of transactions of purchase and sale must be satisfied in order that a person could be said to be carrying on business of selling goods. The definition in the Andhra Pradesh Act is the same as in the Orissa Act after amendment. The Supreme Court examined several authorities, both of State High Courts as also its own, and ultimately came to hold that when the o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the objects related to disposal of its own discarded parts, that certainly was not its business. The disposal was an annual event. The assessee did not devote its time and attention for the purpose of having the transactions of disposal of spares and scraps. There was no frequency or repetition of the dealing. There is some force in the submission of the learned standing counsel that no general guideline can be laid down to deal with cases of every type. Yet, on the facts of the case, we are inclined to agree with the Additional Tribunal that the transactions which have been taken as sales on the footing that they constituted the assessee's business did not really constitute its business and with reference to that the assessee could not be ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
