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TMI Blog1991 (4) TMI 398X X X X Extracts X X X X X X X X Extracts X X X X ..... turnover including the turnover wrongly exempted. Since in the meantime, the Tribunal in a similar case took the view in favour of the assessee, the proposals were dropped on November 3, 1977, leaving a note to that extent in the assessment file. It may be noticed at this stage that pursuant to the notice issued, the assessee filed objections in which he sought for revision of the entire assessment claiming deduction of the whole of the turnover from the net of taxation and inasmuch as the proposals issued for revision were dropped, the assessee filed a revision petition under section 32 of the Tamil Nadu General Sales Tax Act, 1959, hereinafter referred to as "the Act ", before the Deputy Commissioner of Commercial Taxes. 3.. The Deputy Commissioner, while considering the revision of the assessee, rejected the claim on the basis of the decision of the Supreme Court reported in [1973] 31 STC 426 (State of Tamil Nadu v. Burmah Shell Oil Storage and Distributing Co. of India Ltd.). The turnover of Rs. 64,842.74 was held to be liable to tax at 4 per cent multi-point. Aggrieved, the assessee filed an appeal before the Sales Tax Appellate Tribunal, Coimbatore. The Tribunal, while di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eferring to the provisions of the Road Transport Corporation Act, 1950 and the object of the Corporation as disclosed from the terms of its incorporation, the court came to the conclusion that it was not one of its objects to carry on the business of purchase or sale of any scrapped vehicles or other types of scrap. It was in that context and the nature of the provisions contained in the Andhra Pradesh Act, the Corporation was held not liable to tax. 6.. In State of Andhra Pradesh v. Andhra Pradesh State Road Transport Corporation [1989] 74 STC 336, a Division Bench of the Andhra Pradesh High Court once again considered the very same question and following its earlier view in the decision reported in [1971] 27 STC 42 (Andhra Pradesh State Road Transport Corporation v. Commercial Tax Officer) rejected the revision filed by the Revenue reiterating its view that the Andhra Pradesh State Road Transport Corporation was not a dealer in transport vehicles or any unserviceable vehicles or material and the Revenue had not shown that the said Corporation was carrying on business in purchase or sale of such articles. This was once again on the view that the activity of the Andhra Pradesh St ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he earlier judgment in State of Tamil Nadu v. Burmah Shell Oil Storage and Distributing Co. [1973] 31 STC 426 (SC) is pronounced by a Bench comprising three learned Judges being larger one as against two Judges' Bench which delivered the judgment in District Controller of Stores v. Assistant Commercial Taxation Officer [1976] 37 STC 423 (SC) we, therefore, follow the earlier decision." That apart, the said High Court concurred with the categorical findings of the Tribunal rendered on the nature of its activity and having regard to the terms of its constitution under the enactment referred to supra. 7.. In State of Tamil Nadu v. Burmah Shell Oil Storage and Distributing Co. of India Ltd. [1973] 31 STC 426, the Supreme Court had an occasion to deal with a case under the provisions of the Tamil Nadu General Sales Tax Act, 1959, with special reference to the amendments introduced to the same by the amending Acts of 1961 and 1964. The State was the appellant before the Apex Court. The respondents who were the assessees are oil companies and they were obliged under the Factories Act to supply tea and edibles to its workmen in the canteen established by it. It also supplied to its age ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , cans, boxes, cotton ropes, rags, etc., were held to be not part of or incidental to the main business of selling textiles. This contention, in our view, does not take into account the context in which that finding had been given. In that case, as already pointed out, what was held under the analogous Bombay Sales Tax Act, which was similar to that under the Madras Sales Tax Act, prior to its amendment in 1964, the sale of scrap does not necessarily lead to an inference that business which was an element in determining the liability of the dealer for the turnover in such goods was intended to be carried on in those goods. This Court had observed, it cannot be presumed, that when the goods were acquired, there was an intention to carry on business in those discarded materials nor are the discarded goods, by-products or subsidiary products or are produced in the course of manufacturing process; that they are either fixed assets of the company or are goods which are incidental to the acquisition or use of stores or commodities consumed in the factory and that when these go into the profit and loss account of the business and may indirectly be said to reduce the cost of production of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng of clause (i) of the definition and that the sale of unserviceable materials and scrap-iron, etc. is transaction in connection with or ancillary to such commerce within the clause (ii) of that definition." 9.. In Indian Express (P.) Ltd. v. State of Tamil Nadu [1987] 67 STC 474, the Apex Court was concerned with the levy of sales tax under the Tamil Nadu General Sales Tax Act on sales of surplus copies of newspaper by weight as waste paper by the Indian Express (P.) Ltd. and it was held as follows: "It is also clear from the material on the record that the transactions of sale of surplus copies must be regarded as a business carried on by the appellant. It was an activity which he pursued regularly, and the motive was to earn a profit. It was incidental to the business carried on by the appellant of printing and publishing newspapers. In the course of carrying on the business of printing and publishing newspapers, it is inevitable that a number of copies should remain surplus and that they should, therefore, be sold as waste paper. The business of selling the surplus copies as waste paper attracted sales tax, having regard to the terms of clause (d) of section 2 of the Act, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l Taxation Officer [1976] 37 STC 423 (SC) and State of Tamil Nadu v. Indian Express (Madurai) Limited [1974] 34 STC 231 (Mad.), held the sales of old newspapers, print waste and cut waste as well as the unrequired glazed newsprint to be liable to sales tax under the Madras Act. 12.. In State of Tamil Nadu v. Sri Velan Stores [1984] 57 STC 11, a Division Bench of this Court was concerned with the question of levy of sales tax on the turnover relating to the sale of old car belonging to the assessee who was a dealer in readymade garments and textiles. Applying the ratio of the decision of the Apex Court in [1973] 31 STC 426 (State of Tamil Nadu v. Burmah Shell Oil Storage and Distributing Co. of India Ltd.) the Court held therein as follows: "The learned Government Pleader urged before us that the decision of the Tribunal is erroneous in point of law. He urged that the Tribunal had gone against the principles laid down by the Supreme Court in State of Tamil Nadu v. Burmah Shell Oil Storage and Distributing Co. of India Ltd. [1973] 31 STC 426 (SC). In that case, it was laid down that when once a person is found carrying on a business as a dealer, namely, in the buying and sellin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gh the articles sold may not be in the line of business undertaken by the assessee. The decision in the Burmah Shell case [1973] 31 STC 426 (SC) has been followed by this Court in a series of cases, the latest of them being the decisions in T.C. No. 1321 of 1977, State by Deputy Commissioner (CT) Madras Division v. Munoth Brothers, Madras and T.C. No. 890 of 1977, T.R. Aghoram Iyer Firm, Akkur v. Deputy Commercial Tax Officer, Mayavaram. The decision of the Supreme Court in Board of Revenue v. A.M. Ansari [1976] 38 STC 577 (SC), which has been relied on by the Tribunal in the present case in preference to the earlier decision of the Supreme Court in the Burmah Shell case [1973] 31 STC 426 (SC) has been specifically considered by this Court in Deputy Commissioner (CT) v. Vijayalakshmi Mills Limited [1977] 40 STC 463, wherein this Court has held that the decision of the Supreme Court in Board of Revenue v. A.M. Ansari [1976] 38 STC 577 (SC) does not run counter to the principle laid down by the Supreme Court in the Burmah Shell case [1973] 31 STC 426 (SC) and that therefore the decision in the Burmah Shell case [1973] 31 STC 426 (SC) should be held to continue to hold the field eve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ional policy, would be nevertheless trade or business and inasmuch as profit-motive or profitaccrual was irrelevant under the Andhra Pradesh Act, the Joint Director of Food would be liable to sales tax. 15.. After a careful reference to and consideration of the ratio of the various decisions referred to above, we are of the view that the definitions of the term "business " and "dealer" under the Tamil Nadu General Sales Tax Act, 1959, as in force during the relevant point of time, are of wide amplitude so as to take within its fold all transactions of sales carried on in the course of business, though the articles sold may not be in the line of business undertaken by the assessee. That apart, we find that this Court has been consistently taking the view following the ratio of the Apex Court in [1973] 31 STC 426 (State of Tamil Nadu v. Burmah Shell Oil Storage and Distributing Co. of India Ltd.), [1982] 49 STC 17 (State of Tamil Nadu v. Binny Ltd.) and [1976] 37 STC 423 (District Controller of Stores, Northern Railway v. Assistant Commercial Taxation Officer) that the transactions of the nature carried on by the respondent/assessee are exigible to sales tax under the provisions of ..... 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