9911796707
TMI Blog1989 (8) TMI 325X X X X Extracts X X X X X X X X Extracts X X X X ..... or its opinion: "(i) whether, on the facts and in the circumstances of the case, the Board of Revenue was justified in holding that the levy of purchase tax on the purchase of building materials purchased for repairs, renewal and maintenance of buildings was in order? (ii) whether, on the facts and in the circumstances of the case, the Tribunal was justified in holding that the assessee was a dealer in respect of the activity of plying the trucks for public hire and hence the purchase of tyres for his trucks was liable to purchase tax? (iii) whether, on the facts and in the circumstances of the case, the Member of the Tribunal was justified in referring the point regarding purchase tax on building materials used for repairs, renewal and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ness. It was further held that the plying of trucks was also his business and comes within the definition of "business" under section 2(bb) of the Act. Aggrieved by the order of the Appellate Deputy Commissioner, the assessee filed a second appeal (No. 154-V/78) before the Tribunal (Board of Revenue) raising his aforesaid contentions specifically in his memo of appeal. However, in the order dated 6th October, 1982, passed by the Tribunal, the point regarding building material was not considered and it was also contended that the Tribunal's order stated under mistake that the trucks for which tyres were purchased, were being used for the assessee's own transport. Accordingly, the assessee filed an application under section 45(2) of the Act. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ucks were used for public hire, nevertheless since this was also the business of Potteries, etc., the purchases of tyres for the trucks were subject to purchase tax. 6.. On reference under section 44(1) of the Act made at the instance of the assessee the learned Tribunal has referred the aforesaid three questions arising out of the Tribunal's order in appeal dated 6th October, 1982 and the order in rectification dated 1st September, 1984, for the opinion of this Court as stated at the outset. 7.. Question No. (i) relates to the levy of purchase tax on the purchase of building materials purchased for repairs, renewal and maintenance of buildings. The learned counsel for the assessee has submitted that purchase of materials for repairs of b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase of building materials was in connection with repairs, renewal and maintenance of buildings. Learned counsel for the assessee has submitted that for determining the question of liability to purchase tax, it would make no difference whether the activity of construction is undertaken to make the building available for starting the business or for expansion of business or for maintenance or continuance of business. The activity of construction is a condition precedent not only for starting business of manufacture or its expansion but also for continuance of the business of manufacture and such activity of construction cannot be said to be the business of assessee so as to make him liable to pay tax on the purchase of building materials used ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was not liable to purchase tax. 11.. Accordingly, our answer to this question is that the Tribunal was not justified in holding that the assessee was a dealer in respect of the activity of plying the trucks for public hire or that the purchase of tyres for his trucks was liable to purchase tax. 12.. As regards question No. (iii), it is not seriously disputed that the Tribunal was justified on the facts and in the circumstances of the case in referring the point regarding purchase tax on building materials used for repairs, renewal and maintenance of the buildings, to the Division Bench. The course adopted by the learned Tribunal in referring the point to a Division Bench appears justified in the circumstances of the case under rule 4 fra ..... X X X X Extracts X X X X X X X X Extracts X X X X
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