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TMI Blog2023 (2) TMI 4X X X X Extracts X X X X X X X X Extracts X X X X ..... est Godavari District. The Bharatiya Vidya Bhavan is a public trust registered under Bombay Public Trust Act bearing Registration No.F-358 (Bom). The petitioner's school was established in the year 1983 with an object to provide education on non-profit basis. It was established by the Philanthropists for development of society. The petitioner's school is run on non-profit basis. The school offers courses from LKG to 10th standard as is recognized by Central Board of Secondary Education (CBSE), New Delhi. As on the date of writ petition, the petitioner's school has 832 students and 70 staff members of both teaching and non-teaching category. A number of schools were sponsored by Bharatiya Vidya Bhavan in the State of Andhra Pradesh and petitioner's school is one among them. (b) The further case of the petitioner is that the Government of India having recognized services of Bharatiya Vidya Bhavan, notified the society as an educational institution of national eminence for the purpose of Section 80(g)(1) of the Income Tax Act, 1962 (for short 'I.T. Act'). As a result, the funds and donations received by the society and the institutions sponsored by it are eligible for exemption U/s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be made in the course of business of running a restaurant or eating house or hotel. The petitioner is concerned, it is engaged in the activity of providing education to the children in the age group of 3+ to 15 years. The activity of providing education will not qualify to be an activity connected with trade, commerce or manufacture and as such the petitioner cannot be termed as a dealer for the purpose of APGST and VAT Acts and the provisions of those enactments are not applicable to the petitioner institution. The supply of food by the petitioner's school to its students is not being made in the course of business and running restaurant, eating house or hotel. Whereas, Section 2(10(d) of the VAT Act specifically refers to only a restaurant, eating house or a hotel. Hence the said act has no application to the petitioner. Hence the writ petition. 3. The 1st respondent filed counter and opposed the writ petition contending thus: (a) The petitioner got alternative efficacious remedy by way of an appeal against the impugned order and hence the writ petition is not maintainable. It is submitted that the petitioner is an educational institution imparting education to the students ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ,410/- . Hence the writ petition is not maintable and same is liable to dismissed. 4. Heard argument of Sri R. Sudheer, learned counsel for the petitioner and learned G.P. for Commercial Taxes representing respondents. 5. It is the contention of learned counsel for petitioner that predominantly the activities of petitioner's educational institution are in the nature of furtherance of objects of Bharati Vidya Bhavan which is a public trust and is undertaking several philanthropic activities one of which is imparting education on non-profit basis. Therefore, petitioner's educational institution shall, by no stretch of imagination, be treated as a 'dealer' within the mischief of Section-2(10) of AP VAT Act, 2005 since there is no element of business, trade or commerce undertaken by the petitioner's educational institution. So far as supply of food items and beverages to the students in the hostel by collecting mess charges is concerned, the said activity is only incidental, ancillary and auxiliary to the main function of the petitioner's institute, which is obviously imparting education and as such the supply of food articles and collection of nominal charges from the boarders canno ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isputed that the said trust was established with philanthropic philosophy for the development of the society and one of its objects is to establish educational institutions and disseminate knowledge without commercial or lucrative attitude. The copy of certificate of registration filed along with material papers by the petitioner shows that Bharatiya Vidya Bhavan was registered under the Societies Registration Act vide Registration No.946/1939- 1940. Then the notification dated 12.04.2001 issued by the Director General of Tax (Exemptions), Calcutta, a copy of which is filed by the petitioner, shows that Bharatiya Vidya Bhavan, Mumbai, was recognized as Educational Institution of National Eminence under Section 80(g)(2)(iii)(f) of the Income Tax Act, meaning thereby all the donations made to the Bhavan are wholly deductable for income tax purposes. Then, the copies of the letter heads of the petitioner's educational institute shows that the same is mentioned as Bharatiya Vidya Bhavan's residential public school. Therefore, there can be no demur that petitioner's educational institution comes under Bharatiya Vidya Bhavan's public trust and its activity of imparting education is not i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t as it may, the qualifying phrase for a dealer is "who carries on the business of". Therefore, in order to be christened as a dealer within the purview of this Act, he shall carry on the activity of business. The word 'business' is also defined under Section 2(6), which reads thus: (a) any trade, 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 or undertaken with a motive to make gain or profit and whether or not any gain or profit accrues there from; (b) any transaction in connection with, or incidental or ancillary to, such trade, commerce, manufacture, adventure or concern; and (c) any transaction in connection with commencement or incidental or ancillary to the commencement or closure of such trade, commerce, manufacture, adventure or concern; Explanation: - For the purpose of this clause - (i) the activities of raising of manmade forests or rearing of seedlings or plants shall be deemed to be business; (ii) any transaction of sale or purchase of capital goods pertaining to such trade, commerce manufacture, adventure or conce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... penalty. Aggrieved, the petitioner institute filed the writ petition before High Court of Allahabad. The petitioner's case was that the fee charged from the visitors of the hostel is not the actual price of the food consumed by them and the principle of charging the fee is the same as in the case of other hostels where students reside and that a fixed fee is charged for tea, breakfast, lunch and dinner and the same has no relation to the actual consumption and the charges paid by the residents have really a very remote relation to the actual value of the food stuffs consumed by them. Thus, according to petitioner, the transaction of supplying food stuffs to the residents of the hostel cannot be termed as 'sale' nor can the petitioner be said to be 'carrying on business of buying or selling goods' within the meaning of UP Sales Tax Act. The respondent however contended that the petitioner charges price of foodstuffs supplied to the visitors separately in the bills and that the customers of the petitioner include all and sundry. The division bench of High Court of Allahabad observed that the petitioner is under statutory obligation to maintain a hostel such as the visitors hostel and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he hostel is incidental to the main activity and as such, though subsidized prices are charged from the students for supply of the food items and beverages, the transaction cannot be treated as 'sale of goods' to bring the activity within the mischief of AP VAT Act. 14. The contention of the respondents that the writ petition is not maintainable in view of availability of alternative remedy is concerned, we find no much force in it. It must be reiterated that mere availability of alternative remedy is not an embargo to entertain the writ petition, rather, constitutional Courts observe judicial restraint and discipline and generally desist from entertaining writ petitions when alternative remedy is available in a given case. That does not mean they lack jurisdiction. Even in cases where alternative efficacious remedy is available, still the constitutional Courts can entertain the writ jurisdiction in certain occasions. In Whirlpool Corporation v. Registrar of Trade Marks, Mumbai AIR 1999SC22 = MANU/SC/0664/1998 the Hon'ble Apex Court enumerated such occasions and held as follows: "15. Under Article 226 of the Constitution, the High Court, having regard to the facts of the case, h ..... X X X X Extracts X X X X X X X X Extracts X X X X
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