TMI Blog1999 (3) TMI 610X X X X Extracts X X X X X X X X Extracts X X X X ..... purchase price (SPP) under section 4(6)(i) of the 1941 Act at Rs. 79,978 and demanded Rs. 3,198.90 as purchase tax including interest thereon and also imposed penalty of Rs. 300. Appeal against the assessment having been filed, the appellate authority (respondent No. 2), though modified the assessment order and reduced the penalty amount, affirmed the levy of purchase tax on the applicant. Against this appellate order the firm filed a revision application before the West Bengal Commercial Taxes Appellate and Revisional Board (in short, "the Board") making specific assertion that jute stick falls under entry No. 32 of Schedule I of the 1941 Act and hence is not exigible to sales tax and is also not subject to purchase tax in view of the pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t types of purchase of goods [other than those enumerated in clause (i) of the sub-section (6) of section 4]. According to section 4(6) the purchase tax is attracted whenever a goods is: (i) purchased from a dealer, who is not registered under the 1941 Act, intended for direct use in the manufacture in West Bengal of goods for sale and of containers and other materials for the packing of goods so purchased for manufacture; or (ii) purchased from a registered dealer against declaration form; or (iii) purchased from any person, whether a dealer or not, who is not registered under this Act (the goods must be other than gold, rice, wheat) intended for a purpose, other than those specified in clause (i). The above categories of purchase ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rchase can be said to be a "dealer" within the meaning of definition given in section 2(c) of the 1941 Act. 5.. To become a dealer under the said section, the concerned person must carry on a business of selling goods in West Bengal. There is no dispute that the persons from whom the firm makes purchases of jute sticks are cultivators. Even the appellate authority in his order (vide page 23 of the application) has made a finding that seller of jute-sticks are cultivators. This finding has not been questioned either before the revisional authority or before us. In support of his contention that cultivators selling their agricultural produce as such are not "dealers", Mr. Chakraborty has referred to the decisions reported in [1957] 8 STC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... otval, JJ., have observed as follows: "It will thus be seen that a person does not necessarily fall within the definition of a 'dealer' contained in the Act merely because he sells or supplies commodities, and in order to bring him within the definition it is additionally necessary to show that he carried on those activities as his business........ Again, an agriculturist may sell the produce from his lands but this activity cannot by itself be regarded as a business of sale or supply of agricultural produce; nor again would the two sets of activities taken together be said to constitute such a business, unless of course his primary intention in engaging himself in such activities was to carry on the business of sale or supply of agricu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be a person carrying on a business of selling simply because he effects a sale of his own agricultural produce." 6.. An identical view was taken by the same High Court in the case of Deputy Commissioner of Agricultural Income-tax and Sales Tax v. Mammu Haji [1967] 19 STC 45. In view of the observations above we are unable to hold that the cultivators who sold the jute sticks to the applicants are "dealers". Mr. J.K. Goswami has contended that sellers of jute sticks may be cultivators but that ipso facto cannot lead to a conclusion that in the matter of sale of jute sticks to the applicants they are not acting as middlemen. But the identity of a man as a cultivator ipso facto leaves no scope for an inference that he is also a middleman. I ..... X X X X Extracts X X X X X X X X Extracts X X X X
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