TMI Blog1967 (4) TMI 134X X X X Extracts X X X X X X X X Extracts X X X X ..... l for the State of Kerala (A.G. Pudissery and M.R. Krishna Pillai with him), for the appellant. -------------------------------------------------- The judgment of the Court was delivered by SIKRI, J. -This appeal by special leave is directed against the judgment of the Kerala High Court in Tax Revision Petition No. 49 of 1963, dismissing the revision filed by the Deputy Commissioner, Agricultural Income-tax and Sales Tax, Quilon. The High Court held that the respondent, Travancore Rubber and Tea Co., hereinafter referred to as the assessee, was not a "dealer" within section 2(b) of the Central Sales Tax Act, 1956. The facts on record are scanty. In the assessment order in respect of the assessment year 1960-61, with which we are concerned, the Sales Tax Officer, Special Circle, Alleppey, determined the turnover of the assessee at Rs. 6,14,713.92, but did not discuss the question whether the assessee was a "dealer" or not within the Central Sales Tax Act. The Additional Appellate Assistant Commissioner of Agricultural Income-tax and Sales Tax, in the appeal filed by the assessee, dealt with the point raised by the assessee that it was not a dealer, as follows: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... heets and effect a sale of those sheets to its customers; (2) Latex is an opaque liquid resembling milk; the usual method of selling it is after converting it into sheets, and that the conversion is not manufacturing process but a process essential for the transport and marketing of the produce concerned. On these facts, the High Court held as follows: "We take the view that an agriculturist selling his own produce either as gathered or after subjecting it to she minimum requirements necessary for transport and marketing cannot be considered to be a person engaged In the business of selling. The sale which he effects, as we see it, is only the culmination of his agricultural operations; it is not separate and distinct from his agricultural avocation; and he cannot be considered to be a person carrying on a business of selling simply because he effects a sale of his own agricultural produce." The department had formulated the questions of law for decision by the High Court as follows: "(i) Whether a person who regularly sells rubber sheets produced by conversion of latex obtained from trees grown on his own lands is a dealer under section 2(b) of the Central Sales Tax Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 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. Whether a person carries on business in a particular commodity must depend upon the volume, frequency, continuity and regularity of transactions of purchase and sale in a class of goods and the transactions must ordinarily be entered into with a profit-motive. By the use of the expression 'profit-motive' it is not intended that profit must in fact be earned. Nor does the expression cover a mere desire to make some monetary gain out of a transaction or even a series of transactions. It predicates a motive which pervades the whole series of transactions effected by the person in the course of his activity. In actual practice, the profit-motive may be easily discernible in some transactions: in others it would have to be inferred from a review of the circumstances attendant upon the transaction. For instance, where a person purchases a commodity in bulk and sells it in retail it may be readily inferred that he has a profit-moti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ome' as defined by section 2(1) or 'income from agriculture' under the second proviso to section 4(2)." In Raja Visheshwar v. Province of Bihar [1951] 2 S.T.C. 129., it was held by the Patna High Court that although grains or sugarcane were goods within the meaning of the Bihar Sales Tax Act, the mere fact that the plaintiff (question arose in a suit) sold the excess over his requirements could not make him a dealer within the meaning of sec- tion 2(c) of the Bihar Sales Tax Act (6 of 1944), which defined the word "dealer" to mean a person who carries on the business of supplying goods. Manohar Lall, J., observed: "It is true he sells agricultural products or goods but he has set up no place of business. The evidence is to the effect that the goods are sold in each village probably in the Khalihan where an agriculturist stores them after harvesting or after they are brought to the granaries except with regard to sugarcane which has to be carted to the mills-this is the normal way in which sugarcane is sold in this Province at least. The plaintiff has a vast area of zirat or bakast lands in his cultivation and therefore the amount of goods produced will be large and the bigness ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... can. be clearly separated from the income of his other business. There is nothing to show that the petitioner acquired these lands with a view to doing 'the business of selling or supplying' agricultural produce. According to him, he is principally an agriculturist who also deals in cotton, coal, oil-seeds and groundnuts. No doubt, he was carrying on agricultural business, but prima facie, that was for the purpose of earning income from his fields. There is nothing in the orders of the Sales Tax Authorities to show that the lands were acquired with the primary intention of doing business of selling or supplying agricultural produce. Unless it is established that a person engages himself in the business of selling or supplying goods, he would not fall within the definition of 'dealer' contained in section 2(c) of the Act. We do not say that in a given case the cultivation of land may not be undertaken with the object or pur- pose of carrying on a business of selling or supplying agricultural produce, but, as stated, in the instant case, there is nothing from which we can so conclude. In all cases of taxation the burden of proving the necessary ingredients laid down by law to justi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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