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TMI Blog2016 (8) TMI 670X X X X Extracts X X X X X X X X Extracts X X X X ..... 5 With TAX APPEAL NO. 2134 of 2009 With TAX APPEAL NO. 2478 of 2009 - - - Dated:- 1-8-2016 - MR. KS JHAVERI AND MR. G.R.UDHWANI, JJ. FOR THE APPELLANT : MR. JOSHI, SR. ADVOCATE, FOR NANAVATI ASSOCIATES, ADVOCATE FOR THE OPPONENT : MR. HARDIK VORA, AGP ORAL JUDGMENT (PER : HONOURABLE MR.JUSTICE KS JHAVERI) By way of these appeals under section 78 of the Gujarat Value Added Tax Act, 2003, ( the Act for short) the appellant has challenged the order of the Gujarat Value Added Tax Tribunal (hereinafter referred to as the Tribunal ) whereby the Tribunal has held that the appellant is `dealer within the meaning of section 2(10) of the Act. 2. These appeals were admitted by this court for consideration of the follo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct is not in the nature of business? 3. Learned counsel for the appellant-trust Mr. Joshi, senior Advocate, contended that as per Exception (iii) to section 2(10) of the Act, which is reproduced hereunder, the appellant is not a dealer: Exception The following shall not be deemed to be a dealer within the meaning of this clause, namely, (I) and (ii) xxxxxxxx (iii) a charitable, religious or educational institution, carrying on the activity of manufacturing, buying, selling or supplying goods, in performance of its functions, for achieving its avowed objects, which are not in the nature of business . 3.1 He has further contended that the appellant being a charitable trust is not engaged in businesses and not a dealer as define ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... limits specified therein, is liable to payment of tax under the Act on his turnover of sales or purchases. Although the Act provides for levy of tax on the sales or purchases of certain goods in the State of Maharashtra, the levy is restricted only to sales or purchases made by dealers. As is manifest from Section 3 itself, the liability to pay sales tax is only on the dealers. From the combined reading of Section 3, 2(5A) and 2(11) of the Act, it follows that the tax under the Act is leviable on the sales or purchases of taxable goods by a dealer and not by every person. From the facts of the present case, the sole object of the assessee Trust is to spread the message of Siababa of Shridi. It is also not disputed that the books and literat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... less an independent intention to carry on business in the incidental or ancillary activity is established. In such cases, the onus of proof of an independent intention to carry on business connected with or incidental or ancillary sales will rest on the Department. Thus, if the main activity of a person is not trade, commerce etc., ordinarily incidental or ancillary activity may not come within the meaning of business . To put it differently, the inclusion of incidental or ancillary activity in the definition of business pre-supposes the existence of trade, commerce etc. The definition of dealer contained in Section 2(11) of the Act clearly indicates that in order to hold a person to be a dealer , he must carry on business and t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ame. 5. We have heard learned counsel for the parties. We have gone through the material evidence available on record. Since the appellant being a charitable trust, is doing the activity of purchasing, selling and supplying medicines to patients in order to achieve its avowed objects, it is not engaged in business activity and therefore, the appellant is not a dealer within the meaning of Exception (iii) to section 2(10) of the Act. In that view of the matter, we answer the question in favour of the appellant and against respondent. 6. So far as Tax Appeal Nos. 430 of 2010, 23 of 2015, 2134 of 2009 are concerned, we have dealt with identical question in Tax Appeal No. 1673 of 2009, where we held that the appellant is not a `dealer in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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