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TMI Blog1990 (12) TMI 298X X X X Extracts X X X X X X X X Extracts X X X X ..... of the tender forms was received by the assessee during the relevant years, i.e., for the assessment years 1978-79, amounting to Rs. 1,179, in 1979-80 amounting to Rs. 39,166 and in 1980-81 amounting to Rs. 75,910. The assessee-petitioner was assessed for these assessment years and in addition to other tax liabilities created and penalty imposed, the assessee was held liable for the payment of sales tax on the sales of the tender forms. The assessee preferred an appeal before the Deputy Commissioner (Appeals), Udaipur, against the complete assessment, challenging the order passed by the Commercial Taxes Officer on various grounds including the ground that no tax is payable on the sale of tender forms as it is not the business activity of the assessee-petitioner. The appeal filed by the assessee was partly allowed by the Deputy Commissioner (Appeals). Though the appeal was allowed on other points, but so far as the imposition of the tax on the sale of tender forms was concerned, that was maintained. Dissatisfied with that order, the assessee preferred an appeal before the Rajasthan Sales Tax Tribunal, Ajmer. The Tribunal, by its order dated December 4, 1987, decided all the three a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... judgment of the Supreme Court rendered in Anraj v. Government of Tamil Nadu and Dipak Dhar v. State of West Bengal [1986] 61 STC 165; AIR 1986 SC 63. I would now advert to the case law, on which reliance has been placed by both the parties. In Madhya Pradesh Electricity Board v. Commissioner of Sales Tax [1968] 21 STC 202 (MP), the point for consideration was: whether the Madhya Pradesh Electricity Board, which was supplying the electricity and steam to the consumers is a dealer under the Madhya Pradesh General Sales Tax Act, 1958 and whether the sale of coalash and specification and tender forms are liable to sales tax. The Madhya Pradesh High Court, after considering the law on the point came to the conclusion that the Madhya Pradesh Electricity Board was not a dealer as per the provisions of the Madhya Pradesh General Sales Tax Act as the activities of the Board was only with respect to generation, distribution, sale and supply of electrical energy. The learned Judges of the Madhya Pradesh High Court, in this case, also, came to the conclusion that "the specification and tender forms are given by the assessee at a certain price to the persons who desire to give tenders for cer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e to the conclusion that the petitioner was not a dealer within the meaning of section 2(e) of the Act inas much as none of the activities of the petitioner amounted to carrying on business either under its constitution or as defined in section 2(1)(bbb) of the Andhra Pradesh General Sales Tax Act. In Royal Talkies v. Employees' State Insurance Corporation AIR 1978 SC 1478, the question that arose for consideration before the Supreme Court was: whether keeping a cycle stand in a cinema theatre by the contractor is incidental or connected with the business of the cinema theatre or not? The Supreme Court observed that a thing is incidental to the another if it appertains to something else as primary and the operation of keeping a cycle stand is incidental or adjuncts to the primary purpose of the theatre within the meaning of clause (ii) of section 2(9). In this case, it was further observed that a car parking or cycle stand, surely, has a connection with the cinema theatre and even further the venture. In State of Tamil Nadu v. Binny Ltd. [1982] 49 STC 17 (SC); AIR 1980 SC 2038, the same principles were reiterated by the Supreme Court. The point for consideration in that case was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bjects; and (ii) an educational institution, where such sale, supply or distribution is made to its students;" Section 2(f) of the Rajasthan Sales Tax Act defines the word "dealer", which reads as under: "2(f) 'dealer' means any person who carries on the business of buying, selling, supplying or distributing goods, directly or otherwise, whether for cash, or for deferred payment, or for commission, remuneration or other valuable consideration and includes- (i) a local authority, a company, an undivided Hindu family or any society including a co-operative society, club, firm or association which carries on such business; (ii) a society including a co-operative society, club, firm or association which buys goods from, or sell, supplies or distributes goods, to its members; (iii) a commission agent, a broker, a del credere agent, an auctioneer or any other mercantile agent, by whatever name called, who carries on the business of buying, selling, supplying or distributing goods on behalf of any principal; (iv) a casual trader." The definition of the word "business" was amended by the Rajasthan Taxation Laws (Amendment) Act, 1965 (Act No. 9 of 1965) with retrospective effect. As ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rwise as it was necessary to apply in a proper tender form. If any person wanted to give the tender without this form, sold by the assessee-petitioner then he does not get any right for applying the same. By purchasing the form the intended supplier, thus, became entitled to give his bid, which he was not otherwise entitled and after purchasing the form if he fills and submits this tender form and the quotation given by him is the lowest then he acquires a future right for making the supply. Both these interests are beneficial in the movable property-one in the present and the other in future, depending on the contingencies, but without the purchase of tender form, the intended supplier could not be allowed to participate in the bid to make supply of the materials. This tender form, thus, gives right to the intended supplier to participate in the bid for supply with respect to non-ferrous materials, which the petitioner-assessee was dealing in. The petitioner is making purchases by giving advertisement and inviting tender forms on the prescribed forms, which were supplied by the petitioner on the payment of Rs. 25 to Rs. 1,000. It cannot, therefore, be said that the sale of the ten ..... X X X X Extracts X X X X X X X X Extracts X X X X
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