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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 ..... 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 following substantial questions of law: Tax Appeal No. 1673 of 2009: "Whether the Gujarat Value Added Tribunal substantially erred in law in upholding Determination Order dated 7.6.2007 passed by the Joint Commissioner that the appellant, a public charitable trust running and maintaining a public hospital, is a dealer while carrying on the activity of buying, selling and supplying medicines in the performance of its functions for achieving its avowed object of charity through f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ds, 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 defined in section 2(10) of the Act. In support of this contention, he has relied on the decision of the Apex Court in the case of Commissioner of Sales Tax v. Sai Publication Fund reported in (2002) 4 SCC 57, particularly, paragraph Nos. 10 and 11, which are extracted below: "para 10 - The contention that the Trust in question is "dealer" within the meaning of Section 2(11) read with Section 2(5A) requires careful scrutiny. As is evident from Section 2(11), every person is not "dealer" but only those person ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 literature etc. containing the message of Saibaba were distributed by the Trust to the devotees of Saibaba at cost price. There is no dispute that the primary and dominant activity of the Trust is to spread the message of Saibaba. This main activity does not amount to "business". The activity of publishing and selling literature, books and other literature is obviously incidental or ancillary to the main activity of spreading message of Saibaba and not to any business as such even without profit motive and it is i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ition 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 then only he may also be deemed to be carrying on business in respect of transaction incidental or ancillary thereto. We have stated above that the main and dominant activity of the Trust in furtherance of its object is to spread message. Hence, such activity does not amount to "business". Publication for the purpose of spreading message is incidental to the main activity which the Trust does not carry as business. In this view, the activity of the Trust in bringing out publications and selling them at cost pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 view of Exception (iii) to section 2(10) of the Act. The appellant is also carrying on some activities which are not business activities. In that view of the matter, we answer the question in favour of the appellant and against the respondent. 7. So far as Tax Appeal No. 2478 of 2009 is concerned, the questions will be governed by our decision in Tax Appeal No. 1673 of 2009 where we have held that the activity of buying, selling and supplying medicines in performance of the functions of the appellant in order to ac ..... X X X X Extracts X X X X X X X X Extracts X X X X
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