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TMI Blog1973 (5) TMI 84X X X X Extracts X X X X X X X X Extracts X X X X ..... ooks of accounts and other documents for the purpose of assessment of tax payable under the said Act in respect of the period of four quarters ending March, 1957. Thereafter, a petition dated 12th August, 1958, was filed before the said Commercial Tax Officer praying for cancellation of the registration certificate on the ground that the South Eastern Railway was not a dealer within the meaning of the said Act as the said railway was neither a producer nor supplier for value of the unclaimed and unconnected goods sold in the public auction. The said Commercial Tax Officer did not agree with the said contention and he, accordingly, held by his order dated 6th June, 1959, that the disposal of unclaimed goods was a regular feature of the said railway. Accordingly, the assessment was completed after hearing the assessee on 6th June, 1959. Against the order dated 6th June, 1959, the assessee filed a revision petition before the Assistant Commissioner of Commercial Taxes, Calcutta, Chowringhee Circle. The point that was urged was whether the South Eastern Railway could be treated as a dealer or not within the meaning of the said Act. It was contended that the Government did not become a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an be considered to be a dealer within the meaning of section 2(c) of the Bengal Finance (Sales Tax) Act, 1941, for the purpose of its liability to sales tax in respect of the sales conducted by it under the provisions of section 56 of the Railways Act. It would be, therefore, necessary to refer to the position under the statute. Prior to the passing of Act 25 of 1969, which came into effect on 15th October, 1969, under section 2(c) it was provided that "dealer" meant any person who carried on the business of selling goods in West Bengal and included the Government. Section 2(d) defines "goods" as inclusive of all kinds of movable properties other than actionable claims, stocks, shares or securities. Under section 2(g) "sale " means any transfer of property in goods for cash or deferred payment or other valuable consideration, including a transfer of property in goods involved in the execution of a contract, but does not include a mortgage, hypothecation, charge or pledge. As mentioned hereinbefore, the Act underwent certain amendments by the West Bengal Taxation Laws (Amendment) Act, 1969, being Act 25 of 1969, and it would be, therefore, necessary to refer to the relevant provisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lways substituted", then the amendment would have been retrospective. Having regard, therefore, to the language used in the instant case, it must be held that the said amendment is retrospective. It was also so held in the decision of this court in the case of Fort Gloster Industries Ltd. v. Member, Board of Revenue, West Bengal[1970] 26 S.T.C. 141. Reference to this decision will be necessary later on some other points. In view of the amendment, therefore, we have to consider whether the railway is a dealer in terms of section 2(c) of the Bengal Finance (Sales Tax) Act, 1941. Dealer, according to the Act, must be a person who carries on the business of selling goods in West Bengal. The business that is necessary to be carried on must be a trade, commerce, or manufacture or adventure or concern in the nature of trade, commerce or manufacture whether or not such trade, commerce, manufacture, adventure or concern is carried on with a motive to profit and whether or not any profit accrues from such trade, commerce, manufacture, adventure or concern and it would also include any transaction in connection with, or ancillary or incidental to, "such" trade, commerce, manufacture, adventu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s known, cause a notice to be served upon him, requiring him to remove the animal or goods. (2) If such owner or person is not known, or the notice cannot be served upon him or he does not comply with the requisition in the notice, the railway administration may, within a reasonable time, subject to the provisions of any other enactment for the time being in force, sell the animals or goods as nearly as may be, under the provisions of the last foregoing section, rendering the surplus, if any, of the proceeds of the sale to any person entitled thereto." Section 71 deals with carriage of passengers. Chapter VIA deals with certain limitations on the railway servants which are not relevant. The other provisions are not relevant for the purpose of this case. Therefore, as mentioned hereinbefore, the essential function of the railway is to carry passengers for fare and carry goods for freight and incidental and ancillary powers or authority had been given to the railways under the Railways Act to discharge these essential functions. The disposal of unclaimed goods under section 56 is an incidental power. It provides, as mentioned hereinbefore, that if, under sub-section (1) of section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... found, reliance may be placed on the decision of the Supreme Court in the case of State of Himachal Pradesh and Others v. Associated Hotels of India Ltd.[1972] 29 S.T.C. 474 (S.C.). Can it, therefore, be said that the company which is authorised to deal in immovable properties, if as an incident of such a sale, any transactions of sale of goods arise in West Bengal, it would be still liable under the provisions of the Bengal Finance (Sales Tax) Act? It appears the expression "such" indicated, that for the trade and Lusiress of selling goods, if any incidental or ancillary transaction arises as an incident of such sale, it would be included in the definition of business but not beyond it. The Supreme Court had occasion to consider some of these questions in the case of State of Tamil Nadu v. Burmah Shell Oil Storage & Distributing Co. of India Ltd.[1973] 31 S.T.C. 426 (S.C.). There, the Supreme Court held that under the Madras General Sales Tax Act, 1959, sales of advertisement materials and scraps and canteen sales during the period of 1st April, 1964, to 31st August, 1964, were not liable to sales tax. The aforesaid decision was made because the Madras Sales Tax Act was not made ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s any longer valid. However, for the purpose of this case, it is not necessary for us to examine this question and we do not express any opinion on this controversy. Reliance was also placed on a decision of the Andhra Pradesh High Court in the case of Andhra Pradesh State Road Transport Corporation, Hyderabad v. Commercial Tax Officer, Hyderabad III[1971] 27 S.T.C. 42. There, the Andhra Pradesh State Road Transport Corporation, the assessee, constituted under the Road Transport Corporation Act, 1950, had as its object, to provide or secure or promote an efficient, adequate, economical and properly coordinated system of road transport service in the State. Since 1958 the corporation had been operating bus service on various routes in the State. In the course of its activity, scrapped vehicles, old tyres, old containers and other unserviceable materials were left with the corporation which it had been disposing of periodically by public auction or by inviting the tenders. The corporation was provisionally assessed to sales tax in respect of the sales of the scrapped vehicles and other scraps effected during the period 1st April, 1966, to 30th September, 1966. It was held that the c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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