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2015 (4) TMI 458 - BOMBAY HIGH COURTDealer or not - Charitable trust - Whether Tribunal was justified in holding that the appellant's activity of manufacture and sale of sweetmeats and farsan is integral and incidental to his main charitable activity, and that therefore the appellant is not a 'dealer' and does not carry on 'business' qua its activity of manufacture and sale of sweetmeats and farsan - Held that:- trust was formed with an object of providing pure drinking water to the needy, to provide food; either free of charge or at concessional rate to the needy and deserving and as such according to the assessee, the activity of manufacturing of farsan and sweetmeats is taken up. Though it is claimed by the assessee that the sweetmeats and farsan are made available to the devotees at concessional rate, no material is brought on record to demonstrate that the said activities of sale of sweetmeats and farsan, etc. are restricted to the persons interested, whereas it is part of the orders passed by the Revenue, from time to time, that the sweetmeats and farsan are sold to the general public. - From the conduct of the assessee, it appears that the very activity of manufacture and sale of farsan and sweetmeats, is also not ancillary to the main object of the trust, but the same activity is carried out as purely business activity and that too on large basis continuously and having sizable volume. It is nowhere provided in the object of the trust to manufacture farsan and sweetmeats and to sell the same in open market, that too on large scale, in sizable volume with a continuous and regular activity. The profit earned out of the said activity is said to have been used for the purpose of achieving the object of the trust, however, the said activity of preparation of sweetmeats and farsan and selling the same, in no way could be termed as an activity ancillary to the main object of the trust, i.e. providing medical aid, education, manage Pyaus, to manage and run Ganesh Bhandar and to provide food, sweetmeats and other delicious food free of charge or at concessional rate. This is not a sale of literature or other material having any bearing on the teaching and message of somebody as revered as Saibaba. It is a proper commercial activity and aimed at garnering revenue. It is now established and is in place under the distinctive name and style. The sale of sweetmeats, farsan to general public cannot be equalled with a activity noticed by the Hon'ble Supreme Court [2002 (3) TMI 45 - SUPREME Court] and associated with Saibaba and his followers. It is also required to be noted that even if the main object of the trust in the present case is not a business, the connected incidental or ancillary activity of manufacture of farsan and sweetmeats, could not normally be termed as 'business', unless the very conduct of the assessee if analyzed independently, the intention that could be gathered is to conduct the business in carrying out the incidental or ancillary activity. In our opinion, the Revenue has rightly discharged its burden by bringing on record from the observations made herein above, that the activity of the assessee trust is not incidental or ancillary to the main object of the trust, hence termed as 'business' having regard to its nature, viz. continuity, voluminous, etc. - Court is alive to the fact that the profit motive will have hardly any bearing over declaring the said activity as 'business' activity, however, it is required to be noted that the regularity of the transaction of manufacture and sale in the said class of goods, that too with a motive of carrying on business and making available the same not only to restricted persons or beneficiaries of the trust, but to public at large, has to be termed as the 'business' activity covered under the Bombay Act and assessee trust is liable for tax under the Bombay Act. - Decided in favour of Revenue.
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