9911796707
TMI Blog1990 (8) TMI 356X X X X Extracts X X X X X X X X Extracts X X X X ..... ed at 1, Strand Road, Calcutta-1. The club is not a dealer within the meaning of the Bengal Finance (Sales Tax) Act, 1941, (hereinafter called "the Act") and is not obliged to get itself registered under the provisions of the said Act. The club does not sell any goods but merely provides goods to its members acting as their agent. It is, therefore, not liable to pay any tax under the Act as its transactions do not constitute sale within the meaning of the Act. The Legislature did not seek to treat the provision of food, drinks, etc. by the club to its members as a sale where the club was merely acting as an agent of its members. In case the transaction is in the nature of sale as defined in the Act then only the club would be liable to pay ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... its members constitutes sale and that the club is not acting merely as an agent of its members as claimed by the applicant. The respondents have claimed that even prior to the Forty-sixth Amendment of the Constitution the definition of the word "dealer" included within its ambit all types of clubs whether incorporated or unincorporated. The taxes, however, were not realised from the unincorporated clubs in view of some legal constraints but with the passing of the said Forty-sixth Amendment such constraints were removed with the result that the taxability of the sales made by such unincorporated clubs to its members has now been revived from a state of suspended animation. The respondents have controverted the contention of the applicant t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elevant transactions, as has been done in some other States, such clubs could not be taxed. He referred in this connection to certain clarifications given by the Commissioner of Commercial Taxes in this regard confirming the position advocated by, him. 6.. Mr. P.K Chakraborty, the learned State Representative, on the other hand, contended that there was a pre-existing provision to tax such clubs in the State sales tax law, which was validated and supported by the constitutional amendment, as is evident from the explanation to the definition of the term "dealer". He further contended that any interpretation or clarification given by an executive authority could not be allowed predominance over the legislative will. 7.. In order to includ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ave been, a transaction by way of sale. A similar provision was made in Bengal Finance (Sales Tax) Act, 1941, by inserting section 26A which gave retrospective effect to sub-clause (ii) of clause (g) of section 2 (definition of "sale" of the Act. 9.. The effect of all these provisions was that the State imposed a tax on supply of food, etc., with retrospective effect. This could be done because the State Legislature amended the definition of "sale" on being given competence to legislate with regard to such supply by the constitutional amendment. It is not that the Forty-sixth Amendment brought in the law. The Forty-sixth Amendment only gave the State Legislature the competence to legislate. It was the State Legislature which had to brin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ., parties competent to contract, mutual assent, and transfer of property in goods from one of the parties to the contract to the other party thereto for a price. As an unincorporated club or association was the same as its members the basic ingredients of sale were thus found to be missing. To enable State Legislature to levy sales tax on such clubs an appropriate provision was made in the Constitution by the aforesaid amendment. 12.. The question before us is whether armed with powers as a result of the constitutional amendment, the State Legislature did use such powers to make suitable enactment to tax such clubs. It is one thing to have competence and quite another to exercise such competence to bring in appropriate legislative measur ..... X X X X Extracts X X X X X X X X Extracts X X X X
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