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2014 (5) TMI 497 - HC - VAT and Sales TaxLiability of Sales Tax - Auction sale of the gold bullion offered by the devotees to the assessee/ Devasthanam - Religious institution Held that:- Relying upon Sri La Sri Subramanya Desiga Gnanasambada Pandarasannadhi v. State of Madras, [1983 (7) TMI 11 - MADRAS High Court] There is no doubt that the activity of the assessee is religious in nature - The conduct of sale of the offerings is incidental to the object which is totally religious - That has also been the finding given by the authorities below - It is very clear that to treat a person as a dealer u/s 2(g), the activity he carries on must be in the course of the business - The term "business" defined u/s 2(d) also makes it very clear that it relates to the trade and commerce and any transaction incidental thereto - Therefore, by a bare application of the definition of the above said terms which are the basis for the purpose of imposing tax under the Act There is no hesitation to hold that there is absolutely no business or trading activity by the assessee/Devasthanam. Relying upon Tirumala Tirupati Devasthanam, Tirupati v. The State of Madras and another [1971 (8) TMI 192 - MADRAS HIGH COURT] - Which was referred with approval impliedly by the Apex Court in Commissioner of Sales Tax v. Sai Publication Fund [2002 (3) TMI 45 - SUPREME Court] wherein the Apex Court elaborately has discussed about the various terms including business, dealer, etc., and held that to term a person as a dealer there must be a profit motive - The Revenue neither contended nor proved that in sale of publications the Trust had an independent intention to do business as incidental or as an ancillary activity. Relying upon Commissioner of Sales Tax v. Sai Publication Fund [2002 (3) TMI 45 - SUPREME Court] - It may be stated that the question of profit motive or no-profit motive would be relevant only where a person carries on trade, commerce, manufacture or adventure in the nature of trade, commerce etc. - In the present case irrespective of the profit motive, it could not be said that the Trust either was dealer or was carrying on trade, commerce etc. - The Trust is not carrying on trade, commerce etc., in the sense of occupation to be a dealer However, added here that whether a particular person is a dealer and whether he carries on business, are the matters to be decided on facts and in the circumstances of each case - The reasoning as given by Tribunal in the impugned order is unsustainable - Accordingly, this revision stands allowed and the impugned order of the Tribunal stands set aside and the order of the Appellate Assistant Commissioner stands restored - Decided in favour of the assessee.
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