TaxTMI 
TaxTMI 
2021 (2) TMI 395
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....ire was issued and duly served upon the assessee however no compliance has been made by the assessee. Penalty proceedings u/s 271(1B) of the Act was initiated; notice was issued on 29.12.17 upon the assessee. Final hearing was re-fixed on 18.05.2018. In the absence of any response from the assessee, the matter was finalized by imposing penalty as mentioned hereinabove. However as we also find from the records that a remand report dated 31.05.19 was furnished to the ld. CIT(A) by the ld. A.O wherefrom it appears that where the submission of the reply by the assessee relating to the penalty order u/s 271(1B) of the Act was filed wherein the assessee categorically mentioned that the permanent established of the assessee is at Ranchi and the details of the business are maintained in the said city further that there is no established at Kolkata. It appears that the assessee has complied with the notice u/s 142(1) of the Act though late as evident from the records before us. Therefore no penalty in the instant case is called for. However the ld. DR relied upon the order passed by the authorities below. 4. In this respect, we would like to rely upon the judgment passed by the Hon'ble Ap....
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....e expression "dealer" was defined at the relevant time as meaning: "Dealer' means any person who executes any contract or carries on the business of selling or supplying goods in Orissa whether for commission, remuneration or otherwise and includes any firm or Hindu Joint family, and any society, club or association which sells or supplies goods to its members. Explanation ......................" A person to be a dealer within the meaning of the Act must carry on the business of selling or supplying goods in Orissa. The expression "business" is not defined in the Act. But as observed by this Court in State of Andhra Pradesh v. Abdul Bakhi and Bros. (1) "The expression 'business' though extensively used is a word of indefinite import, in taxing statutes. it is used in the sense of an occupation, or profession which occupies the time, attention and labour of a person, normally with the object of making profit. To regard an activity as business there must be a course of dealings, either actually continued or contemplated to be continued with a profit motive, and not for sport or pleasure ." The sales tax authorities and the Tribunal have held that the Company was....
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.... case the Tribunal stated no facts at all, and merely submitted the question which was submitted by the Company and the question which, in the view of the Tribunal, arose out of the order. Even in the order deciding the appeal, the facts found on which the conclusion was based were not clearly set out. The Tribunal observed that though the primary object of the Company was to establish a steel plant, the Memorandum authorised the Company to carry on "any trade or business" that it thought would be conducive to its interest. Observed the Tribunal: "Judged in this light one cannot find anything wrong if in the initial stages when construction works were going on, the Company thought it prudent that instead of keeping its employees idle and bearing the cost of maintenance without any return, utilised them in some subsidiary business which would promote the interest of the Company and bring some return. With that end in view the company could as well have brought contractors to manufacture bricks in its lands, purchased the same from them, purchased cement, coal and other materials from dealers, opened a stores department and kept those materials so procured in its stores and thereaf....
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....tractor shall remain the absolute property of the Company, and shall not on any account be removed from the site of the work, and shall at all times be open to inspection by the Engineer-in-Charge. Any such materials unused and in perfectly good condition at the time of the completion or determination of the contract shall be returned to the Engineer-in- Charge's store, if by. a notice in writing under his hand he shall so. require;..............." Attached to the tender form is the schedule which recites: "Recovery of rates of materials to be supplied by H.S.L., for the work of: (1) Construction of brick masonry compound wall around plant area. Northern section Length 2.4. miles. (2) Construction of brick masonry compound wall around plant area. Southern section Length 2.30 miles. (3) Construction of brick masonry compound wail around plant area. Marshalling yard section Length 4.15 miles ." It is followed by a table which sets out the Serial No. of the articles to be supplied, description of materials unit, rate and place of delivery. It is clear from the terms of the tender and the schedule annexed thereto that the Company was to charge certain rates for the ma....