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TMI Blog2002 (9) TMI 811X X X X Extracts X X X X X X X X Extracts X X X X ..... ainst the appellant (delinquent official) would meet the ends of justice and we order accordingly. (1) Withholding of promotion of the appellant for next five years from February 5, 1998, i.e., the date of passing of the final order No. FTX. 204/95/138 dated February 5, 1998. (2) Monthly recovery at the rate of Rs. 2,000 (rupees two thousand only) from the monthly pay of the appellant (delinquent official) up to the date of this judgment." 4.. The charges framed by the disciplinary authority are that the petitioner had issued two certificates indicating that sale of unserviceable goods or old stock materials or waste product of obsolete or discarded machinery parts or accessories are not exigible to sales tax under the sales tax laws in Assam; and thereby he had caused pecuniary loss to the State exchequer to the tune of Rs. 1,30,900. The third charge is relatable to the certificates issued without authority of law. The enquiry officer submitted his report holding that all the three charges have been established. The enquiry report was acted upon and the penalties as indicated above have been imposed. The certificates issued by the writ petitioner on October 5, 1994 and Novem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Rs. 1,30,900. With regard to the third charge it has been held that the certificates were issued in violation of the clear directives of the Commissioner. 6.. Mr. M.K. Choudhury, learned counsel for the petitioner, argued that as per provisions of the Assam General Sales Tax Act, a Central Government organisation is not liable to pay tax on sale proceeds of scrap materials sold on public auction casually and, as such there is no loss to the State exchequer as alleged. Mr. Choudhury further submitted that the Commissioner of Taxes has also no authority under the Act to issue any circular restraining the Superintendent of Taxes from clarifying or interpreting the provisions of law. As such, Mr. Choudhury argued, the circular of 1985 issued by the Commissioner and alleged to have been violated by the writ petitioner is of no significance. According to him, the petitioner acted bona fide and issued the certificates which may at best be regarded as an error of judgment and, therefore, the penalties imposed are not sustainable in law. It is pointed out that the Project Vartak is a Central Government organisation and no sales tax is required to be paid by it in respect of sale pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ary to their trade constitute 'business' under the aforesaid provisions. They can be registered under the appropriate provisions of law. Sd/- (B. Bordoloi) Deputy Commissioner of Taxes, Assam, Guwahati.". 7.. Now the question is whether the certificates in question issued by the writ petitioner could be regarded as violative of the circular issued by the Commissioner of Taxes in the year 1985. Technically speaking, it is incumbent upon all the subordinate officers to follow the directives issued by the head of the department. The Commissioner in the said circular specifically prohibited clarification or interpretation of the provisions of taxation law by any officer subordinate to him. This circular has no statutory force since the Commissioner under the Act has not been vested with any power to issue any direction to any of his subordinates restraining them from exercising their quasi-judicial function under the Act. However, the circular can at best be treated as an administrative direction. Insertion of section 73A by the Assam General Sales Tax (Amendment) Act, 2000 empowering the Commissioner to issue such orders, instructions, directions and clarifications consisten ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hing more than merely selling or buying, etc. Whether a person 'carries on business' in a particular commodity must depend upon the volume, frequency, continuity and regularity of transactions of purchase and sale in a class of goods and the transactions must ordinarily be entered into with a profit-motive. [Board of Revenue v. A.M. Ansari [1976] 38 STC 577 (SC); (1976) 3 SCC 512]. Such profit-motive may, however, be statutorily excluded from the definition of 'business' but still the person may be 'carrying on business'." 11.. Yet in another case, namely, Morarji Brothers (Import and Export) Pvt. Ltd. v. State of Maharashtra [1995] 99 STC 117, the Bombay High Court with reference to the Bombay Sales Tax Act, 1959 held that sale of three used motor cars by the applicant, who was a dealer carrying on the business of manufacturing, selling and supplying of chemicals, did not amount to sale within the meaning of section 3 read with clauses (11) and (5A) of section 2 of the Bombay Sales Tax Act, 1959. The Bombay High Court relied upon the ratio of the State of Gujarat v. Raipur Manufacturing Co. Ltd. [1967] 19 STC 1 (SC) in coming to the above conclusion. 12.. The ratio available i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion. Therefore, sale of scrap materials by Project Vartak, in the opinion of this Court, is not exigible to sales tax. 15.. The insertion of clause (10a) by the Assam General Sales Tax (Amendment) Act, 2000 which received the assent of the Governor on 6th May, 2000 indicates the legislative intent of levying tax even in case of casual transactions involving buying, selling, supplying or distribution of goods in the State whether for cash or for deferred payment or for commission, remuneration or other valuable consideration. The law was otherwise when the certificates of exemption were issued by the writ petitioner. Insertion of this clause by the Amendment Act of 2000 clarifies the position prior to May 6, 2000. There was indeed a vacuum in respect of casual transactions which has been sought to be filled-up by this amendment. 16.. It would, therefore, appear that the writ petitioner as Superintendent of Taxes issued the certificates of exemption in exercise of his quasi-judicial powers in favour of a Government organisation engaged in construction of roads and the certificates were not inconsistent with the provisions of the Act as in force on the date of issue. Therefore, no ..... X X X X Extracts X X X X X X X X Extracts X X X X
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