TMI Blog2012 (2) TMI 459X X X X Extracts X X X X X X X X Extracts X X X X ..... d by the assessee. The aforesaid sale is a onetime sale by which the discarded goods were sold. The assessee is not in the business of the sale of metal detectors, water coolers and lockers. He is not a dealer of those articles. Therefore, the consideration received from the sale of said goods is not leviable to tax under the Act. Appeal allowed. Levy of tax on the sale of discarded goods totally in a sum of ₹ 1,06,612 is without authority of law. - S.T.A. No. 74 of 2010 - - - Dated:- 24-2-2012 - KUMAR N. AND RAVI MALIMATH, JJ. For the Appellant : Smt. Vani H For the Respondent : T.K. Vedamurthy, High Court Government Pleader, The judgment of the court was delivered by N. KUMAR J.- The assessee has preferred ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rest at 1.25 per cent under section 36 of the Act. Aggrieved by the said order, the assessee preferred an appeal to the Joint Commissioner of Commercial Taxes (Appeals). The appellate authority held that the turnover relating to sale of used equipment also forms part of the total turnover and therefore, under section 15(1), the assessee is liable to pay tax at four per cent on the total turnover. Accordingly, the appellate authority reduced the tax rate applicable to the assessee from 12.5 per cent to four per cent and consequently, the interest as well as the penalty levied was also reduced. The revisional authority in a purported exercise of power issued a notice dated July 5, 2010, under section 64(1) of the Act proposing to restore the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or sale of the aforesaid articles cannot form part of the total turnover for the purpose of calculating tax and availing of the benefit and therefore, he submits that the order passed by the revisional authority is valid and does not call for interference. 5. From the aforesaid material, it is very clear that the assessee is in the business of sale of food articles, snacks and beverages. He is registered dealer under the Act. He has opted for composition scheme and he has paid four per cent tax on the total turnover of sale of food articles, snacks and beverages. In November, 2006, he has sold used equipment, viz., metal detectors, water coolers and lockers. The said sale consideration was not reflected in VAT returns filed by the assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ealer within the meaning of the Act, when he carries on the business of buying or selling of goods for consideration paid or payable in future. What is required is that sale or purchase must take place during the course of business of buying or selling in view of definition of 'dealer' in clause (h) of section 2 of the Act. The expression 'business' though extensively used in taxing statutes, is a word of indefinite import. In taxing statutes, it is used in the sense of an occupation, or profession which occupies the time, attention and labour of a person, normally with the object of making profit. To regard an activity as business there must be a course of dealings, either actually continued or contemplated to be continued ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourse of carrying on a business is required to dispose of what may be called his fixed assets or his discarded goods acquired in the course of the business, an inference that he desired to carry on the business of selling his fixed assets or discarded goods would not ordinarily arise. But no test is decisive of the intention to carry on the business. In the light of all the circumstances an inference that a person desires to carry on the business of selling goods may be raised. Even in transaction in connection with or incidental or ancillary to such trade, commerce, manufacture, advertisement or concern constitutes 'business', but such a transaction should have a direct nexus with the main business carried on by the dealer. 7. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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