TMI Blog1998 (2) TMI 550X X X X Extracts X X X X X X X X Extracts X X X X ..... er-club as the petitioner-club is not doing any business of sale and, as such, is not a dealer, and so periodical submissions of returns by the club to the respondent-sales tax authorities for the purpose of assessing sales tax do not arise. 2.. By filing a supplementary affidavit, an additional prayer is made on behalf of the petitioner for quashing the communication order dated September 30, 1997 which is at annexure 3 to this petition. 3.. The short facts leading to this petition are as under: Ranchi Club Limited is a limited company incorporated under the Companies Act, 1956. A copy of the Memorandum and Articles of Association has been annexed as annexure 1 with this petition, a perusal of which demonstrates that Ranchi Club Limi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aying sales tax, under the Act and the Rules framed thereunder, the petitioner immediately filed an application on August 14, 1997 before the Deputy Commissioner of Commercial Taxes, East Circle, Ranchi, respondent No. 3, for cancellation/recalling of dealership and also for refund of the tax amount already paid by the petitioner including penalty, etc., for the past assessment years. This application for refund and cancellation/recalling of dealership was purported to be one under section 14 read with section 23 of the Act. The said application is based on the fact that the petitioner-club is a member s club operating on the principle of agency and having its relationship with individual members based on the doctrine of mutuality . To s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that it does not operate on the principle of agency and so the petitioner-club is a dealer within the meaning of section 2(e) of the Act and supplies of food, refreshments, etc., made by the club is covered under the definition of sale as defined under section 2(t) of the Act and, as such, exigible to tax under the Act and the Rules. In support of this contention it is submitted that the Memorandum and Articles of Association, if gone through minutely, will reveal that only permanent members of the club shall be deemed to be members within the meaning of clauses (4) and (5) of the Memorandum and Articles of Association and clause (9) of the Articles of Association reveals that temporary members shall not be entitled to vote on a ballot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ipt of notice to the respondent within the stipulated period mentioned therein steps are to be taken for filing counter-affidavit, etc., and only thereafter the petition is placed before the court for hearing parties. But in the instant case, by taking extra caution, before admission of the writ petition, counter-affidavit has been filed on behalf of the respondent-State. Therefore, at the stage of admission this petition is being disposed of finally. 11.. Both the questions, as referred to above, are co-related inasmuch as if while dealing with the petitioner s application, reasonable opportunity of hearing could have been afforded to the petitioner, the petitioner by advancing argument with respect to question No. (i) before the Deputy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rded opportunity of being heard to the petitioner, the petitioner would have been able to satisfy respondent No. 3 on the question of doctrine of mutuality . Thus, this question indeed still remains open to the petitioner to agitate the same before respondent No. 3 and to satisfy him if and when opportunity is granted to him. Therefore, it is not necessary to deal with and decide the question No. (i) at this stage. 13.. However, as far as the second question is concerned, admittedly respondent No. 3, the Deputy Commissioner, Commercial Taxes, proceeded ex parte in passing the order as contained in annexure 3 without affording opportunity of being heard to the petitioner and thus the order impugned suffers from the principle of audi alter ..... X X X X Extracts X X X X X X X X Extracts X X X X
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