TMI Blog1995 (2) TMI 374X X X X Extracts X X X X X X X X Extracts X X X X ..... mbay Sales Tax Act, 1959, made at the instance of the assessee, the Maharashtra Sales Tax Tribunal has referred the following question of law to this Court for opinion: "Whether, the applicant is a dealer within the meaning of section 2(11) of the Bombay Sales Tax Act, 1959?" 2.. The assessee, is the Controller of Stores, Central Railway, Bombay. It is registered as a dealer under the Bombay Sales Tax Act, 1959 ("the Act"). It was assessed under the Act for the period April 1, 1984 to March 31, 1985, by the Assistant Commissioner of Sales Tax ("assessing officer") by his order of assessment dated March 31, 1986. 3.. The controversy pertains to levy of sales tax on the sales turnover of goods sold by the assessee by public auction and th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or the welfare of the public in general and the poor in particular. Counsel, however, agreed that the activity of disposal of unclaimed, unserviceable, discarded and scrap materials is ancillary and incidental to the main activity of the assessee of providing transport service. According to Mr. Surte, the decision of the Supreme Court in District Controller of Stores, Northern Railway v. Assistant Commercial Taxation Officer [1976] 37 STC 423 is not applicable because of difference in the definition of "business" under the Act and under the Rajasthan Sales Tax Act, 1954, which was considered by the Supreme Court in the above decision. 6.. We have carefully perused the decision of the Supreme Court in District Controller of Stores, Norther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ect from January 15, 1975, by Maharashtra Act 62 of 1974 by incorporating clause (5A) in section 2 of the Act. The said clause (5A), reads as follows: "(5A) 'business' includes any trade, commerce or manufacture or any adventure or concern in the nature of trade, commerce or manufacture and any transaction in connection with, or incidental or ancillary to, such trade, commerce, manufacture, adventure or concern;" 8.. The scope and ambit of "business", as defined in clause (5A) of section 2 of the Act, was enlarged and amplified by amendments made from time to time. It is however not necessary for us to refer to those amendments as, in our opinion, the case of the assessee falls even under unamended clause (5A) which has been set out abo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te Government;" Obviously, this amendment is merely clarificatory in nature and was made to validate all assessments made under the provisions of the Act before the commencement of the above amendment which were subject-matter of challenge before different forums on the ground that the persons specified in the Explanation were not "dealers" within the meaning of section 2(11) of the Act. 9.. From a conjoint reading of the definitions of "dealer" and "business", as they stood at the material time, it is manifest that a person would be a dealer if he carries on business, which includes: (i) any trade, commerce or manufacture or concern in the nature of trade, commerce or manufacture, and (ii) any transaction in connection with, or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re from the ratio of the above decision of the Supreme Court. 12.. We also do not find any merit in the contention made on behalf of the Railways that it does not carry on any commercial activity with profit-motive. This contention is wholly unfounded. There can be no dispute about the fact that railways are run by the Central Government as a commercial activity with a view to earn profits. It is the profit-motive which is material. It is not necessary that profit must in fact be earned. It is equally immaterial that it is run by the Central Government, because Central Government which carries on business, has been specifically included in the definition of "dealer" in section 2(11) of the Act. 13.. We are, therefore, of the clear opi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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