TMI Blog2012 (12) TMI 826X X X X Extracts X X X X X X X X Extracts X X X X ..... to replace them, thus sold them. Their sales, in a sense are twice removed from the business of the assessee. They cannot be called “incidental” or “ancillary” to the manufacture and sale of pharmaceutical products, which the assesse is engaged in. The vehicles had already been taxed once under the first point tax regime then in cases of transactions which are redundant and cannot be considered under the definition of “business” as they were aimed mainly to get rid of old vehicles which are carried on by persons in normal course of their lives as well and previous orders of the Appellate Tribunal have also been in favour of the petitioner itself, the levy of sales tax on an already taxed vehicle with little relation to the business will give rise to an anomaly - thus the view taken regarding inclusion of the sales transaction of the cars in question, in the turnover of the petitioner is unsustainable in law - writ petition allowed. - WP (C) No. 4717/2011 & CM No.9555/2011 - - - Dated:- 14-12-2012 - S. RAVINDRA BHAT And R.V. EASWAR, JJ. Petitioner : Shri Rajesh Mahna with Mr. Ruchir Bhatia and Mr. Ankit Singh, Advocates Respondents : Sh. Vineet Bhatia, Advoca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ers are unsustainable. It is contended that the impugned orders do not disclose any reasons why the two orders by the Tribunal with the same material facts are inapplicable to its case and why it is treated discriminatorily. The petitioner relied on a number of judgments in support of its contentions. In the case of Morarji Bros. (I E) Pvt. Ltd v. State of Maharashtra 1995 (99) STC 117, the Bombay High Court held that: In the view of the above, we are of the clear opinion that the sales of three used motor cars by the assessee, who was a dealer carrying on business of manufacturing, selling and supplying of chemicals, did not amount to sale by a dealer within the meaning of section 3 read with clauses (11) and (5A) of Section 2 of the Bombay Sales Tax Act, 1959. The petitioner also relies on Base Repair Organisation (Now Naval Dockyard), Vishakhapatnam v. State of A.P. [(1983) 53 STC 223] cited in the State of Tamil Nadu v. Board of Trustees of the Port of Madras ([1999] 114 STC 520). In Base Repair Organisation, the Naval Dockyard was established for repairing and servicing ships of the Navy. It was obliged by section 46 of the Factories Act to run a canteen to cater to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ression turnover has been defined as follows (Section 2 (o)): (o) turnover means the aggregate of the amount of sale price receivable, or if a dealer so elects, actually received by a dealer in respect of any sale of property in goods, made during any prescribed period in any year after deducting the amount of sale price, if any, refunded by the dealer to a purchaser in respect of any goods purchased and returned by the purchaser within the prescribed period; PROVIDED that an election as aforesaid once made shall not be altered except with the permission of the Commissioner and on such terms and conditions, as he may think fit to impose... 7. An issue somewhat similar to the present one arose for consideration for the first time, before in the Supreme Court in State of Gujarat v. Raipur Manufacturing Co. Ltd AIR 1967 SC 1066. That case arose under the Bombay Sales Tax Act 1953, the disposal by a company carrying on the business of manufacturing and selling cotton textiles of its miscellaneous old and discarded items such as cans, boxes, cot-ton ropes, rags etc., was held by the Court not to be carrying on the business of selling these items of goods. The Supreme Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e second clause was still one invested with commercial character inasmuch as the reference was to any transaction in connection with or incidental or ancillary to any trade, commerce, manufacture, adventure or concern'. It was observed that unless the transaction is connected with trade that is to say, it has something to do with trade or has the incidence or elements of trade or commerce it will not come within the definition. 8. Ancillary according to the Concise Oxford English Dictionary (10th ed.) means something providing support to the primary activities of an organisation; something which is additional or subsidiary. In Board of Trustees of the Port of Madras ([1999] 114 STC 520), the Supreme Court held: If the main activities are business then the sales in connection with or incidental or ancillary thereto need not have been intended as a business or commercial activity. Their mere connection with or being incidental or ancillary to something else which was business was sufficient to include such sales in the main business. 9. The leading case (Raipur Manufacturing Co. Ltd) is based on the definition of business in S.2 (d) (g) prior to it being a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction of its words. In a classic passage Lord Cairns stated the principle thus: If the person sought to be taxed comes within the letter of the law he must be taxed, however great the hardship may appear to the judicial mind to be. On the other hand, if the Crown seeking to recover the tax, cannot bring the subject within the letter of the law, the subject is free, however apparently within the spirit of law the case might otherwise appear to be. In other words, if there be admissible in any statute, what is called an equitable construction, certainly, such a construction is not admissible in a taxing statute where you can simply adhere to the words of the statute. Viscount Simon quoted with approval a passage from Rowlatt, J. expressing the principle in the following words: In a taxing Act one has to look merely at what is clearly said. There is no room for any intendment. There is no equity about a tax. There is no presumption as to tax. Nothing is to be read in, nothing is to be implied. One can only look fairly at the language used. (at p. 635) 12. In the present case, the main business of the petitioner is manufacture and sale of pharmaceutical products and the vehicles ..... X X X X Extracts X X X X X X X X Extracts X X X X
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