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TMI Blog1986 (8) TMI 421X X X X Extracts X X X X X X X X Extracts X X X X ..... nd a total amount of Rs. 1,78,671.83 had been realised by the assessee on account thereof. The Commercial Tax Officer held, that such amount represented the turnover of the assessee under the Central Sales Tax Act, 1956, under which the assessee was not registered as a dealer and assessed Central sales tax on the said amount under section 9(2) of the Central Sales Tax Act. In the course of assessment the assessee was called upon by the Commercial Tax Officer to furnish analysis of sales showing supply to the Government of India departments and to other Government undertakings. Such analysis was not furnished as directed. The Commercial Tax Officer held that the entire amount represented the value of the sales to Government undertakings other than the Government of India departments. Being aggrieved, the assessee preferred an appeal from the said assessment before the Assistant Commissioner of Commercial Taxes. It was contended before the Assistant Commissioner that the assessee was not a dealer within the meaning of section 2(b) of the Central Sales Tax Act, 1956, inasmuch as the transactions involved did not amount to sales under the Indian Sale of Goods Act. It was contended fu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the indentors for valuable consideration and issued bills in respect of such supplies to the persons to whom the forms were supplied. In the bills, the assessee charged the value of the forms, the cost of packing as also a levy charge at the rate of 10 per cent of the total amount of the earlier two items. No explanation was offered by the assessee about the imposition of the levy charge. The Tribunal noted that the assessee was unable to produce before the Commercial Tax Officer the final accounts in respect of supply of forms for the material period in spite of demands. It was contended on behalf of the Revenue that a presumption should be drawn by reason of the withholding of the final accounts that the assessee had in fact made gains or earned some profits in the valuation. The Tribunal held that the fact that the assessee had imposed levy charge at the rate of 10 per cent over and above the value of the forms supplied and the costs of packing indicated that the assessee intended to make some amount of profit or gain out of the transactions. The Tribunal came to this conclusion following a decision of the Assam (Gauhati) High Court in Government Medical Store Depot v. Super ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce sheets. All that the Government required was to ascertain with some accuracy taking into account the amounts received and amounts paid out whether the balance of the amount was sufficient to cover the payments made. The intention of the Government was to ascertain whether the balance would be a surplus or a deficit on the basis of which the Government would either curtail or expand its activities or increase or decrease taxation. Learned Advocate referred to an official publication, named 'Introduction to Indian Government Accounts and Audits'. Learned Advocate next submitted that the decision of the Assam High Court in Government Medical Store Depot (Civil Rule No. 460 of 1969 decided on 26th June, 1973-Gauhati High Court) on the basis of which the Tribunal passed its order had been since reversed by the Supreme Court. It was contended, therefore, that the very basis of the decision of the Tribunal was erroneous and should not be upheld. In support of his contentions learned Advocate for the assessee cited the following: (a) Government Medical Store Depot v. State of Haryana reported in [1977] 39 STC 114 (P & H). The facts in this case were that the Government Medical Store ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... departmental charges consistent with overheads on the principle "no lossno profit". The formula of fixation of rates and the levy of departmental charges had been approved by the Government of India. It was contended that unless it was found that the transactions had been carried on with a view to make profit, the same would not be held to constitute a business and the depot would not come within the mischief of the definitions of a dealer under the said Acts which required a business of buying and selling of goods to be carried on by a dealer. The Supreme Court noted several of its earlier decisions and held that during the relevant period the definitions of the term "business" in the Acts, profitmotive had not been omitted and in the absence of such profit-motive, transactions though satisfying the other requirements of business, namely, volume, frequency, continuity or regularity, would not constitute a business so as to make a person, entering into such transactions, a dealer within the meaning of the said Act. The Supreme Court noted the decision of the Punjab and Haryana High Court in Government Medical Store Depot [1977] 39 STC 114 and held that the said decision was to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pointed out that under section 13 of the Act the assessee was required to keep a true account of the value of the goods bought and sold by it. The assessee had maintained such an account and had produced the same before the Commercial Tax Officer. In any event, under the said section the Commissioner was empowered to call upon the assessee in writing to keep accounts in a particular manner as prescribed. This had not been done in the instant case. Therefore, the question of final accounts did not arise and the authorities concerned misdirected themselves in assuming that the assessee was called upon to keep any final accounts to establish whether the assessee had earned a profit or not. It is not in dispute before us that at the material time the expression "dealer" as defined under the Central Sales Tax Act, 1956 meant any person who carried on the business by buying or selling or supplying of goods. In the same Act the expression "business" was defined to include any trade or commerce or adventure in the nature of trade or commerce. Prior to 1976, the Central Sales Tax Act did not provide that a trade or commerce or adventure in the nature of trade without a motive to make a gai ..... 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