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TMI Blog2013 (8) TMI 679X X X X Extracts X X X X X X X X Extracts X X X X ..... regularity or continuity of the transactions, as has been done in the substantive part in sub clause (1) of sub section (d) of Section 2 of the Act. As far as the contention of the assessee that it does not purchase DEPB licence was concerned, going by the scheme of DEPB and the purpose and the background in which the same was issued and the value at which it was assigned to the petitioner there was no justifiable ground to accept the case of the assessee that he was not a dealer dealing in DEPB licence - The issue raised that the assessee was carrying business in DEPB licence was raised only before this Court and not before the authorities below where the question was whether DEPB licence would be liable to tax - it being a question of law the same be rejected - Decided against the assessee. - Tax Case Revision Nos.158 to 162 of 2011 - - - Dated:- 3-7-2013 - Chitra Venkataraman And K. B. K. Vasuki,JJ. ORDER (Order of the Court was made by Chitra Venkataraman,J.) The assessee has preferred these revisions as against the order of the Tribunal, relating to the assessment years 2001-2002 (TNGST), 2001-2002 (CST), 1999-2000 (CST), 2000-2001 (CST) and 1999-2000 (TNGST ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... related business activity. Thus, the assessee was exigible to sales tax. In the circumstances, the Tribunal held that the transfer of DEPB licence, being incidental to its main business, was assessable to sales tax. Referring to the reliance placed on the decision reported in [1976] 38 STC 577 (S.C.) (Board of Revenue Vs. Ansari), the Tribunal pointed out that the decision of the Apex Court dated 17.03.1976 would not be of any assistance, considering the amendment to the definition of "business" as well as "dealer". Thus, the appeals were dismissed. Aggrieved by this, the present revisions are filed by the assessee. 6. Learned counsel appearing for the assessee took us through the definition of "business" under Section 2(d) of the Tamil Nadu General Sales Tax Act and placed reliance on the decisions of the Supreme Court reported in [1967] 19 STC 1 (SC) (The State of Gujarat Vs. Raipur Manufacturing Co. Ltd.), [1969] 23 STC 173 (SC) (The State of Madras Vs. K.C.P. Ltd.), [1973] 31 STC 426 (SC) (State of Tamil Nadu Vs. Burmah Shell Oil Storage and Distributing Co. of India Ltd. and another), [1976] 38 STC 577 (S.C.) (Board of Revenue Vs. Ansari) as well as [2002] 126 STC 288 (S.C.) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ast to the substantive part of sub clause (i), that "any transaction" in connection with, or incidental or ancillary to, such trade, commerce, manufacture, adventure or concern would also be included within the meaning of the definition "business". Thus, irrespective of regularity, frequency, continuity and volume as inclusive of main business and in contradistinction to the main part, any transaction which is incidental or ancillary to such trade, commerce, manufacture, adventure or concern, would also be "business". So too, a transaction in connection with such trade, commerce, manufacture, adventure or concern, would also be considered as "business" to attract the liability under the provisions of the Act. Evidently, the decision of the Apex Court reported in [1967] 19 STC 1 (SC) (The State of Gujarat Vs. Raipur Manufacturing Co. Ltd.) was rendered with reference to the unamended provision. The question therein related to the expression of "business". The Apex Court pointed out that being a word of indefinite import, the same has to be used in the sense of an occupation, or profession which occupies the time, attention and labour of a person, normally with the object of making p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e second part related to the period 1st September 1964 to 31st March, 1965. The first part was governed by the Madras General Sales Tax Act, 1959, and the second part was governed by the Act after its amendment in 1964. Thus, referring to the definition of "business" in Section 2(d) and "dealer" in Section 2(g), the Supreme Court held that in respect of the transaction after the amendment of the Section, the sale of scrap were certainly connected with the business of the company and hence, the sale was liable to tax. The Supreme Court pointed out that the sale of scrap being incidental to the business of manufacture, the liability was certainly attracted under the provisions of the Act. Referring to the decision of the Supreme Court reported in [1967] 19 STC 1 (SC) (The State of Gujarat Vs. Raipur Manufacturing Co. Ltd.), the Apex Court pointed out that the sale of cans, boxes, cotton ropes, rags etc., were held to be not incidental to the manufacturing or selling textiles. The said decision was rendered in consideration of the provisions of the Bombay Sales Tax Act, which was similar to that in the Madras General Sales Tax Act, prior to the amendment in 1964; that the sale of scra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... element of frequency was lacking in that case and that the Government of Andhra Pradesh could not be said to be carrying on the business of selling forest produce. In that context, the Apex Court pointed out to the decision reported in [1955] 6 STC 674 (Ramakrishna Deo Vs. Collector of Sales Tax, Orissa), where the Maharaja of Jeypore had sold the sal trees from his forest for preparing sleepers, wherein, it was held that he was not a dealer within the meaning of the Orissa Act, but he was not carrying on the business of selling or supplying the goods, for the reason that the element of purchase, viz., one of the necessary ingredients of the business, was absent. Having pointed out to the said decision, the Supreme Court held that the auction of the forest produce not being done frequently and there being no business motive in the context of the definition of "business" as decided in the various decisions of Courts, there was no liability on the sale of forest produce and therefore, the Government of Andhra Pradesh could not be said to be carrying on business in goods. We do not find that the said decision of the Supreme Court would be of any assistance to the assessee herein on th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the words "carrying on business" would require something more than merely selling or buying. Thus, referring to the decision reported in [1976] 38 STC 577 (S.C.):(1976) 3 SCC 512) (Board of Revenue Vs. Ansari), the Supreme Court held that the liability in respect of the incidental activity would arise only when the main activity is also "business". In this context, the Supreme Court held that the assessee's case would not fall within the definition of "business". As far as this ruling of the judgment of the Apex Court referred to above by the learned counsel appearing for the assessee is concerned, in order that an activity, to attract the definition of business, there must be an intention to carry on business, as held in the decision referred to above. In order that an incidental activity would qualify itself to be brought under the definition of "business", such incidental transaction must be in connection with the main activity, trade, commerce, manufacture, adventure or concern. Thus, while for all purposes or for substantive part of the definition "business", there must be frequency, continuity and regularity in the transactions and the said activity would qualify to be ter ..... X X X X Extracts X X X X X X X X Extracts X X X X
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