TMI Blog1972 (6) TMI 62X X X X Extracts X X X X X X X X Extracts X X X X ..... carrying on the business of manufacture of medicines and pharmaceuticals. The petitioner is regularly assessed under the Bengal Finance (Sales Tax) Act of 1941 (hereinafter referred to as the Act). It is not necessary to narrate the various facts stated in the petition which led to the retention of the books of accounts, as those facts are not relevant for the purpose of deciding the present dispute. The petitioner was served with a notice dated 29th November, 1967, issued by respondent No. 4 under section 14(1) of the Act. The said notice stated that in the course of examination of the books of accounts in the premises of the petitioner-company on the 16th November, 1967, it was observed that the company made sales of stores and raw materi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f accounts. It was also stated in the said notices that respondent No. 3 proposed to revise the taxable turnover which was originally assessed at ₹ 75.20 to ₹ 61,821.82. The petitioner thereafter preferred objection. Respondent No. 3 by an order dated 1st August, 1969, treated the sale of empty containers and other miscellaneous goods to be liable to tax under the Act, and recomputed the taxable turnover at ₹ 71,437.50. Aggrieved by the said order of respondent No. 3, the petitioner moved this court and obtained a rule nisi. The main contention urged on behalf of the petitioner is that the sales of the empty containers and other miscellaneous goods do not attract sales tax under the Act, as such sales do not constitute ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etitioner such sale would amount to business within the meaning of section 2(1a)(ii) of the Act and the dealer is treated as carrying on the business of selling such goods. In the present case, the finding of the Assistant Commissioner of Sales Tax, respondent No. 3, is that the empty containers and other miscellaneous goods as were sold by the dealer were either ancillary or incidental to its trade or commerce or manufacture. That finding has not been challenged in this petition. In fact, it is not open to the petitioner in this application to challenge such finding. In view of such finding and in view of the retrospective operation of the definition of the word business introduced by section 2(1a) of the Act, the sale of such goods woul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of the railways. In the facts of that case their Lordships held that when the railway effected sales of unclaimed or unconnected goods it was not a dealer within the meaning of section 2(c) of the Act. In my view the said decision is of little assistance to the petitioner. The petitioner in the present case admittedly carries on the business of manufacture of medicines and pharmaceuticals. The sale of empty containers and other miscellaneous goods was ancillary or incidental to the trade or commerce or manufacture carried on by the petitioner. In the case of State of Tamil Nadu v. Burmah Shell Oil Storage and Distributing Company of India Ltd.[1973] 31 S.T.C. 426 (S.C.)., the Supreme Court held that the sale of the scraps and the advertis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich falls within section 2(1a)(i) of the Act. Under both parts of the definition profit-motive is now immaterial. In view of the new definition it is not necessary for me to deal with the case of State of Gujarat v. Raipur Manufacturing Co. Ltd.[1967] 19 S.T.C. 1 (S.C.). In that case, the Supreme Court took the view that the disposal by a company carrying on the business of manufacturing and selling cotton textile of its miscellaneous old and discarded items cannot be considered to be the business of selling those items of goods. The Supreme Court in that case held that the expression business in taxing statute is used in the sense of an occupation or profession which occupies the time, attention and labour of a person normally with the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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