TMI Blog1996 (12) TMI 371X X X X Extracts X X X X X X X X Extracts X X X X ..... n Bench decision cannot be held to hold good after the amendment. Accordingly, the learned single Judge has dismissed the writ petition. 3.. In Trustees of the Port of Madras v. State of Madras [1960] 11 STC 224, a Division Bench of this Court has held in categorical terms that the Port Trust Act does not constitute the Board of Trustees of the Port Trust for the purpose of carrying on any business in buying and selling with a view to make a profit. Therefore, there will be no liability on its part to pay sales tax in respect of the charges levied and collected by them for water supplied to the ships. 4.. Similarly, in State of Madras v. Trustees of the Port of Madras [1974] 34 STC 135, another Division Bench of this Court has taken the same view. It has been held that the Port Trust is a statutory body constituted by the Madras Port Trust Act, 1905, and though it is subject to certain control by the Central Government under the provisions of the Madras Port Trust Act, it cannot be said to be a department of the Central Government and, therefore, the Port Trust cannot be brought within explanation (2) to section 2(g) of the Act. Even if the Port Trust is taken to be a local a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esearch and the sale of the resulting products by that organisation cannot be said to be in the nature of trade or commerce so as to bring it within the definition of the term 'business' contained in section 2(d) of the Act. In the instant case also, on facts it has been found by the Tribunal, the final fact-finding authority, that the objects of the organisation are to promote research and other scientific works and that laboratories and workshops are maintained by the organisation to conduct experiments. It is also found as a fact that the assessee consumed the raw materials in the course of their research work only. The Tribunal found that the cement which was produced as a result of the research work was sold but that sale was considered as not a trading or a commercial activity. It was found that there was no commercial activity at all carried on by the assessee in respect of the cement manufactured by it. On these facts, the Tribunal considered whether the activity of the assessee can be said to be covered by the definition of the term 'business' as contained in section 2(d) of the Tamil Nadu General Sales Tax Act, 1959, and found in the negative. In our opinion also, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a "dealer" it/he must deal with them as a trader or as a businessman, on a commercial basis. The venture must be a commercial venture. Of course, we have considered the expression "dealer" occurring in the Tamil Nadu General Sales Tax Act in W.P. Nos. 1196, 1197, 1694, 1695, 1696, 1697, 3066 and 3067 of 1990 and 16150 to 16155 of 1991 [Kanyakumari District Planters Association v. Deputy Commercial Tax Officer (Nagarcoil Rural), Nagarcoil] decided on August 12, 1986*. That was a case in which a rubber planters' association known as "Kanyakumari District Planters Association" was the petitioner. A notice issued to the rubber planters to register themselves as dealers under the provisions of the Tamil Nadu General Sales Tax Act was challenged by their association. It was held that they can file their objections to the notices and the authority can decide the objections. It may be pointed out here that in that case, the rubber plantation was a commercial plantation. Therefore, the very activity of the members of the petitioner association was a commercial activity. As such the said decision cannot be applied to the facts of the present case. Here is a case in which this Court, as al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... luding a co-operative society), club or firm or an association which, whether or not in the course of business, buys, sells, supplies or distributes goods from or to its members for cash, or for deferred payment, or for commission, remuneration or other valuable consideration, shall be deemed to be a dealer for the purposes of this Act. Explanation (2).-The Central Government or any State Government which, whether or not in the course of business, buy, sell, supply or distribute goods, directly or otherwise, for cash, or for deferred payment, or for commission, remuneration or other valuable consideration, shall be deemed to be a dealer for the purposes of this Act." Clause (g)(iii) of section 2 was the only clause that came to be substituted by Act No. 31 of 1992. The rest of the provisions of clause (g) continue to be the same. The amendment effected is that "dealer" includes "a factor, a broker, a commission agent or arhati, a del credere agent or an auctioneer, or any other mercantile agent by whatever name called, and whether of the same description as hereinbefore or not, who carries on the business of buying, selling, supplying or distributing goods on behalf of any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Port Trust. 11.. In Trustees of the Port of Madras by its Chairman v. K.P.V. Sheik Mohamed Rowther Co. [1963] Supp 2 SCR 915 while dealing with the relationship between the Port Trust and the owner of the ship in loading and unloading the goods to and from the ship, the Supreme Court has observed thus: "There is no doubt that the ship-owner is the bailee of the shipper, the consignor, and that he is responsible for the delivery of the goods to the consignee or a transferee according to the terms of the bill of lading. This duty the shipowner discharges only when he has delivered the goods to the consignee or such person who be entitled to take delivery in accordance with the endorsements on the bill of lading. Delivery to the Board is not delivery to the consignee or such person, both because the delivery is to be on the presentation of the bill of lading and because the Act contains no provision which would constitute the Board an agent of the consignee for the purpose of taking delivery of the goods........ Sub-section (3) of section 39 of the Act empowers the Board to take charge of the goods for the purpose of performing certain services which do not include the ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the goods as an agent of the consignee." 12.. Having regard to the aforesaid pronouncements, we find it difficult to accept the contention of learned Additional Government Pleader (Taxes), that the Port Trust can be held to be a "dealer" having regard to the amendment effected by Act No. 31 of 1992 in the definition of the word "dealer". Even the definition of the word "business" also does not help the learned Additional Government Pleader (Taxes), because, firstly, the Port Trust does not carry on any business, as it is not a business concern. Though the definition of the expression "business" is an inclusive definition, which takes into its fold "any trade, or commerce or manufacture or any 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 make gain or profit and whether or not any profit accrues from such trade, commerce, manufacture, adventure or concern". The question is not one whether any profit accrues or not from the functions or the activities carried on by the Port Trust. The question is one as to the nature of the duties required to be discharged ..... X X X X Extracts X X X X X X X X Extracts X X X X
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