TaxTMI 
TaxTMI 
1992 (2) TMI 332
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.... it is not at all the object of the petitioner to carry on business. The source of finance of the petitioner is subscriptions paid by members and also by donations. The catering activity of the centre is not in the course of business and the centre, therefore, does not fall under the definition of "dealer" under section 2(e) of the Andhra Pradesh General Sales Tax Act (hereinafter called "the Act") and, therefore, the provisions of the Act are not attracted. It is further alleged that the supply of goods by the petitioner to its members does not constitute "transfer of property" and not exigible to sales tax. Therefore, the petitioner-association was not required to get itself registered as a "dealer" under the Act. While so, on August 6, 1988, the respondent-Commercial Taxes Officer, Khairatabad, seized certain account books relating to the supplies of foodstuffs and drinks by the petitioner-centre to its members and got recorded a statement of the Manager (Accounts) of the petitioner under coercion to his dictation to the effect that the canteen business is being carried on from July 1, 1987 and the bar from February, 1988 and that it will make an application for registration as ....
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.... taxed as they are not carrying on any "business" within the meaning of section 2(bbb) of the Act; (iii) in any event, section 5-C of the Act does not cover the clubs; and (iv) assuming that the Constitution (Forty-sixth Amendment) Act, 1982 covers the clubs, unless the relevant provisions of the Act are also suitably amended, the clubs cannot be taxed under the said Act. The learned Government Pleader for Commercial Taxes contends that after the Constitution (Forty-sixth Amendment) Act, 1982 and the consequential amendments of the relevant provisions of the Act by Act 18 of 1985, the transactions effected by the petitioners fall under the definition of "sale" exigible to sales tax and, therefore, they have to get themselves registered under the Act as "dealers" and file the returns. It is further contended by the learned Government Pleader, basing on the decision rendered on November 17, 1989 in W.P. No. 11848 of 1989, that the petitioners should first exhaust the alternative remedies available to them under the Act by way of filing appeals before approaching this Court under article 226 of the Constitution of India, and these writ petitions filed by the petitioners quest....
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....venture or concern is carried on or undertaken with a motive to make gain or profit and whether or not any gain or profit accrues therefrom; and (ii) any transaction in connection with, or incidental or ancillary to such trade, commerce, manufacture, adventure or concern." "2(e) 'dealer' means any person who carries on the business of buying, selling, supplying or distributing goods (or delivering goods on hirepurchase or on any system of payment by instalments, or carries on or executes any works contract involving supply or use of material) directly or otherwise, whether for cash, or for deferred payment, or for commission, remuneration or other valuable consideration, and includes- (i) local authority, a company, a Hindu undivided family or any society (including a co-operative society), club, firm or association which carries on such business; (ii) a society (including a co-operative society), club, firm or association which buys goods from, or sells, supplies or distributes goods to its members;" "2(n) 'sale' with all its grammatical variations and cognate expressions means every transfer of the property in goods (whether as such goods or in any other form in pu....
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....or association to its members, where the cost of such goods is not separately shown or indicated by the dealer and where the cost of such goods is separately shown or indicated by the dealer, the cost of such goods as shown or indicated;..................................." "5. Levy of tax on sales or purchases of goods.-(1) Save as otherwise provided in this Act, every dealer shall pay a tax under this Act, for each year on every rupee of his turnover of sales or purchases of goods in each year irrespective of the quantum of his turnover at the rates of tax and at the points of levy specified in the Schedules. ........................... (3) For the purpose of this section and the other provisions of this Act, the turnover which a dealer shall be liable to pay tax, shall be determined after making such deductions from his total turnover, and in such manner as may be prescribed. (4) The taxes under this section shall be assessed, levied and collected in such manner, as may be prescribed: Provided that,- (i) in respect of the same transaction, the buyer or the seller but not both, as determined by such rules as may be prescribed, shall be taxed; (ii) where a dealer ....
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....de. Therefore, it is clear that mere supply by way of or as part of any service, of goods for human consumption is deemed to be a "sale" of those goods under the Act. The petitioners, as part of their catering activity, are in fact supplying, by way of or as part of service, goods such as food, drinks and other articles for human consumption, to its members. Similarly, "turnover" under section 2(s) of the Act was amended by Act 18 of 1985. Clause (iii) of section 2(s)(a) will make it clear that the value of the goods supplied or distributed by a society, including a co-operative society, club, firm or association to its members, will be "turnover" under the Act. The definition of "dealer " under section 2(e) of the amended Act includes a society (including a co-operative society), club, firm or association which buys goods from, or sells, supplies or distributes goods to its members or which carries on business. Similarly, under section 2(q) of the amended Act, "tax" has been defined to mean a tax on the supply of goods by any unincorporated association or body of persons to a member thereof for cash, deferred payment or other valuable consideration and also tax on the supply, b....