TaxTMI 
TaxTMI 
TaxTMI 
2013 (8) TMI 679
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....eing no "business" carried on in that line. The assessee further pointed out that there was no sale of goods; consequently, the same was not assessable under the provisions of the Act. The Assessing Officer, however, rejected the contention of the assessee, following the decision reported in 102 STC 106 (Vikas Sales Corporation Vs. Commissioner of Commercial Taxes), holding that DEPB licences were "goods" for the purposes of the Act; consequently, assessable under the provisions of the Act. 4. The assessments were made both under the Tamil Nadu General Sales Tax Act as well as the Central Sales Tax Act. Aggrieved by this, the assessee preferred appeals before the Appellate Assistant Commissioner. Following the decision of the Apex Court referred to above, the Appellate Authority rejected the appeals. Aggrieved by this, the assessee went on appeal before the Sales Tax Appellate Tribunal. The Tribunal pointed out that the assessee was a regular exporter of dressed hides and skins. The place of business of the assessee was inspected on 08.12.2002, which revealed that the assessee had sold DEPB licences locally as well as on inter-State basis and the turnover were not reported in the ....
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....n the absence of any material to show that there was frequency and continuity in dealing with DEPB licence as business carried on, the liability to tax is not attracted on the facts of this case; consequently, the order of the Tribunal is liable to be set aside. 7. Heard learned counsel appearing on either side and considered the material placed on record. 8. We do not agree with the line of reasoning of the learned counsel appearing for the petitioner. "Business" as defined under Section 2(d) of the Tamil Nadu General Sales Tax Act, reads as follows: 2(d) - "Business" includes: - (i) any trade, or commerce or manufacture or any adventure or concern in the nature of trade, commerce or manufacture, whether or not such trade, commerce, manufacture, adventure or concern is carried on with a motive to make gain or profit and whether or not any profit accrues from such trade, commerce, manufacture, adventure or concern; and (ii) any transaction in connection with, or incidental or ancillary to, such trade, commerce, manufacture, adventure or concern; 9. In the context of the decisions of the Apex Court referred to by the learned counsel that in order that an activity of a dealer m....
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.... decision reported in [1969] 23 STC 173 (SC) (The State of Madras Vs. K.C.P. Ltd.). Even therein, the transaction related to the unamended provision. There, the respondent carried on the business in the manufacture and sale of machinery and parts of machinery and accessories. The assessee sold the furnaces which were unsuitable for the purpose for which they were purchased. On the question of liability, the Apex Court pointed out that there was no doubt that the assessee was a dealer. However, the question whether the sale of furnaces had a reasonable connection with the normal course of business was to be seen. In that context, the Apex Court referred to the decision reported in [1967] 19 STC 1 (SC) (The State of Gujarat Vs. Raipur Manufacturing Co. Ltd.) and pointed out that there was no material to show that the furnaces were manufactured or sold by it, or were part of its business or ingrained therein. In that context, the Apex Court referred to the definition of "dealer" which means a person carrying on business of selling goods and thus, applying the decision reported in [1967] 19 STC 1 (SC) (The State of Gujarat Vs. Raipur Manufacturing Co. Ltd.) with reference to the defini....
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....ted in [1976] 38 STC 577 (S.C.) (Board of Revenue Vs. Ansari). Learned counsel appearing for the petitioner places reliance on the said decision primarily based on the observation of the Apex Court that in the absence of an element of purchase as one of the necessary ingredients of business, the question of holding a person carrying on the business in buying or selling as not a dealer, would not arise. He pointed out that the case on hand being one of selling DEPB licence, which itself was given after the export of goods, the decision of the Apex Court would apply. Thus there being no purchase price to it, the assessee could not be held as engaged in the business of buying and selling DEPB licence. 11. We do not find that the reasoning of the learned counsel appearing for the assessee could be accepted based on the decision reported in [1976] 38 STC 577 (S.C.) (Board of Revenue Vs. Ansari). The facts in the said decision were that the Forest Department of the Government of Andhra Pradesh held an auction in respect of various items of forest produce such as timber, fuel, bamboo, minor forest produce, beedi leaves, tanning barks, parks mohwa etc. On the question as to whether sales ....
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....ree export of inputs. The policy gives the method of evaluating the licence for the purpose of allotment. 13. The fifth decision cited by the learned counsel appearing for the assessee is reported in [2002] 126 STC 288 (S.C.) (Commissioner of Sales Tax Vs. Sai Publication Fund). There, the assessee was a Trust created by four devotees of Saibaba of Shiridi with the object of spreading the message of Saibaba. To accomplish the object of the Trust, the Trust published books, pamphlets and other literature containing the message of Saibaba which were made available to devotees at nominal charges to meet the cost. The sale proceeds of such publications went to the Trust and formed part of the property of the Trust. While sale of books would normally attract sales tax liability, in the context of the definition of "business", the Supreme Court pointed out that in the absence of any intention to carry on business therein, the incidental activity, per se, would not come within the meaning of "business" for the purpose of attracting the liability. Referring to the definition of the term "dealer" as given under Section 2(11) of the Bombay Sales Tax Act, the Apex Court pointed out that in o....