9911796707
TMI Blog1992 (2) TMI 332X X X X Extracts X X X X X X X X Extracts X X X X ..... is subscriptions paid by members and also by donations. The catering activity of the centre is not in the course of business and the centre, therefore, does not fall under the definition of "dealer" under section 2(e) of the Andhra Pradesh General Sales Tax Act (hereinafter called "the Act") and, therefore, the provisions of the Act are not attracted. It is further alleged that the supply of goods by the petitioner to its members does not constitute "transfer of property" and not exigible to sales tax. Therefore, the petitioner-association was not required to get itself registered as a "dealer" under the Act. While so, on August 6, 1988, the respondent-Commercial Taxes Officer, Khairatabad, seized certain account books relating to the supplies of foodstuffs and drinks by the petitioner-centre to its members and got recorded a statement of the Manager (Accounts) of the petitioner under coercion to his dictation to the effect that the canteen business is being carried on from July 1, 1987 and the bar from February, 1988 and that it will make an application for registration as a dealer under the Act and shall file monthly A-2 returns by August 8, 1988. On August 18, 1988, the Manager ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y event, section 5-C of the Act does not cover the clubs; and (iv) assuming that the Constitution (Forty-sixth Amendment) Act, 1982 covers the clubs, unless the relevant provisions of the Act are also suitably amended, the clubs cannot be taxed under the said Act. The learned Government Pleader for Commercial Taxes contends that after the Constitution (Forty-sixth Amendment) Act, 1982 and the consequential amendments of the relevant provisions of the Act by Act 18 of 1985, the transactions effected by the petitioners fall under the definition of "sale" exigible to sales tax and, therefore, they have to get themselves registered under the Act as "dealers" and file the returns. It is further contended by the learned Government Pleader, basing on the decision rendered on November 17, 1989 in W.P. No. 11848 of 1989, that the petitioners should first exhaust the alternative remedies available to them under the Act by way of filing appeals before approaching this Court under article 226 of the Constitution of India, and these writ petitions filed by the petitioners questioning the show-cause notices issued to them by the department are not maintainable. Since the matter has been ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... therefrom; and (ii) any transaction in connection with, or incidental or ancillary to such trade, commerce, manufacture, adventure or concern." "2(e) 'dealer' means any person who carries on the business of buying, selling, supplying or distributing goods (or delivering goods on hirepurchase or on any system of payment by instalments, or carries on or executes any works contract involving supply or use of material) directly or otherwise, whether for cash, or for deferred payment, or for commission, remuneration or other valuable consideration, and includes- (i) local authority, a company, a Hindu undivided 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 sells, supplies or distributes goods to its members;" "2(n) 'sale' with all its grammatical variations and cognate expressions means every transfer of the property in goods (whether as such goods or in any other form in pursuance of a contract or otherwise) by one person to another in the course of trade or business, for cash, or for deferred payment, or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tely shown or indicated by the dealer, the cost of such goods as shown or indicated;..................................." "5. Levy of tax on sales or purchases of goods.-(1) Save as otherwise provided in this Act, every dealer shall pay a tax under this Act, for each year on every rupee of his turnover of sales or purchases of goods in each year irrespective of the quantum of his turnover at the rates of tax and at the points of levy specified in the Schedules. ........................... (3) For the purpose of this section and the other provisions of this Act, the turnover which a dealer shall be liable to pay tax, shall be determined after making such deductions from his total turnover, and in such manner as may be prescribed. (4) The taxes under this section shall be assessed, levied and collected in such manner, as may be prescribed: Provided that,- (i) in respect of the same transaction, the buyer or the seller but not both, as determined by such rules as may be prescribed, shall be taxed; (ii) where a dealer has been taxed in respect of the purchase of any goods, in accordance with the rules referred to in clause (i) of this proviso, he shall not be taxed again in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act. The petitioners, as part of their catering activity, are in fact supplying, by way of or as part of service, goods such as food, drinks and other articles for human consumption, to its members. Similarly, "turnover" under section 2(s) of the Act was amended by Act 18 of 1985. Clause (iii) of section 2(s)(a) will make it clear that the value of the goods supplied or distributed by a society, including a co-operative society, club, firm or association to its members, will be "turnover" under the Act. The definition of "dealer " under section 2(e) of the amended Act includes a society (including a co-operative society), club, firm or association which buys goods from, or sells, supplies or distributes goods to its members or which carries on business. Similarly, under section 2(q) of the amended Act, "tax" has been defined to mean a tax on the supply of goods by any unincorporated association or body of persons to a member thereof for cash, deferred payment or other valuable consideration and also tax on the supply, by way of or as part of any service or in any other manner whatsoever of goods being food or any other article for human consumption or any drink (whether or not i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arned counsel for the petitioner placed reliance on the decision in Calcutta Swimming Club v. Commercial Tax Officer [1991] 83 STC 197 (WBTT) and contended that the Constitution (Forty-sixth Amendment) Act, 1982, merely gave the State Legislatures competence to levy a tax on the supply of goods by unincorporated clubs to its members and, without bringing an appropriate legislative measure by the State in conformity with such competence, the clubs are not liable to pay tax under the Act. In our view, this contention is also not tenable as, in the abovesaid case [Calcutta Swimming Club v. Commercial Tax Officer [1991] 83 STC 197 (WBTT)], the Tribunal was dealing with the Bengal Finance (Sales Tax) Act, 1941, where there is no specific provision, deeming the supply of goods to members of unincorporated clubs to be "sales". As mentioned already, the amended Act, in this State, has got specific provisions deeming the supply of goods to members by the clubs as "sales". Therefore, that decision has no application to the facts of the cases on hand. None of the petitioners have questioned any of the provisions of the Act. In view of what is stated above, we are of the view that the peti ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
