TMI Blog1971 (7) TMI 132X X X X Extracts X X X X X X X X Extracts X X X X ..... hat order. The Board of Revenue was not justified in refusing to refer that question to the High Court. Further the High Court erred in summarily dismissing the application made by the assessee. t a reference from the Board of Revenue the High Court had no jurisdiction to decide that question of law. - Civil Appeal No. 1909, 1910, 1911 of 1970, - - - Dated:- 27-7-1971 - HEGDE K.S. AND GROVER A.N. JJ. S.T. Desai, Senior Advocate (Anup Chandra Jain and Sobhagmal Jain, Advocates, with him), for the appellant. V.M. Tarkunde, Senior Advocate (K. Balden Mehta, Advocate, with him), for the respondents. -------------------------------------------------- The judgment of the court was delivered by HEGDE, J. -A common q ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e. Rejected summarily." These appeals are directed against the said order. The appellant is a registered dealer under the Act. The Commercial Tax Officer, Kota, passed separate assessment orders on November 13, 1964, for the period July 1, 1960, to June 30, 1961. In that order in computing the assessee's turnover he took into consideration the price received by the assessee in respect of the sales effected by it of iron and steel defectives, machinery and spare parts etc. The assessee is a dealer in cotton yarn and cotton goods. It is not a dealer in iron and steel detectives or machinery or spare parts. Some of the machinery used by it had become antiquated, and some of the parts of its machinery had worn out. In order to modernise its m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s any sum allowed as cash discount according to the practice normally prevailing in the trade, but inclusive of any sum charged for anything done by the dealer in respect of the goods at the time of or before the delivery thereof other than the cost of freight or delivery or the cost of installation in case where such cost is separately charged and the expression 'purchase price' shall be construed accordingly." The charging section is section 3. But before going to that section, it is necessary to refer to two other definitions in the Act. "Dealer " is defined in section 2(f) as meaning: "any person who carries on the business of buying, selling, supplying or distributing goods, directly or otherwise, whether for cash, or for deferred ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is not relevant for our present purpose]. Now the question is whether the sale of machinery or iron and steel detectives or the spare parts was a part of the "business" of the assessee who undoubtedly was a dealer under the Act. The authorities under the Act as well as the High Court have come to the conclusion that it was a part of his business because of section 2(cc)(ii). The correctness of this conclusion is in issue. The corresponding provisions of the Madras General Sales Tax Act, 1959 (Act 1 of 1959), as amended by Act 15 of 1964, are similar to the provisions in the Act referred to earlier. Interpreting a provision identical to section 2(cc)(ii) of the Act, the Madras High Court in Deputy Commissioner of Commercial Taxes, Coimb ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... High Court. Further the High Court erred in summarily dismissing the application made by the assessee. Without a reference from the Board of Revenue the High Court had no jurisdiction to decide that question of law. The questions formulated by the assessee are not only imprecise but they are repetitive as well. The only question of law arising out of the order of the Board of Revenue is whether the sale of the machinery or iron or steel detectives or spare parts can be considered as "business" within the meaning of section 2(cc). In the result these appeals are allowed and the cases remitted to the High Court with the direction that the High Court shall now direct the Board of Revenue to state a case and submit the question of law ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
