TMI Blog1969 (8) TMI 31X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt has referred to this important piece of evidence and we are unable to decide these appeals unless we have an additional statement of facts in the light of the relevant evidence as to whether the excess charged over and above the price which the company paid for procuring cement and steel (expressly called storage charge) and bricks was intended to be profit. To enable us to answer the questions referred, it is necessary that the Tribunal should be called upon to submit a supplementary statement of the case on the questions whether the company charged any profit apart from storage charges for supplying cement and structural steel, and whether the difference between the price charged to the contractors and the price paid by the company to its suppliers for bricks was not in respect of storage and other incidental charges. - Civil Appeal No. 883, To 892 - - - Dated:- 4-8-1969 - Judge(s) : J. C. SHAH., V. RAMASWAMY., A. N. GROVER JUDGMENT D. Narasaraju, Senior Advocate (R.N. Sachthey, Advocate, with him), for the respondent. C.K. Daphtary, Senior Advocate (D.N. Mukherjee, Advocate, with him), for the appellant. The judgment of the court was delivered by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e was profit making motive on the part of the company ? D. Whether, in view of the definition contained in section 2, clause (h), as it stood prior to the amendment of the provision by Act 18 of 1959, the supplies of materials can be treated as ' sale price' in the hands of the assessee? E. Whether, in the facts and circumstances of the case, the amount received by the assessee in respect of tender forms can be said to be 'sale price' ? F. Whether the Tribunal is right in holding that penalties under section 12(5) of the Act had been rightly levied and whether in view of the serious dispute of liability it cannot be said that there was sufficient cause for not applying for registration ? " The High Court answered the questions, A, B, C, D and F, in the affirmative and question E in the negative. In these appeals filed with special leave substantially three matters fall to be determined : 1. Whether the company sold building material to the contractors during the quarters in question ? 2. Whether the company was a dealer in respect of building material within the meaning of the Orissa Sales Tax Act ? 3. Whether imposition of penalties for failure to register as a dea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd genuine belief that the company was not a dealer. Granting that they erred, no case for imposing penalty was made out. Liability to pay sales tax is imposed by section 4 of the Act. Every dealer whose gross annual turnover exceeds Rs. 10,000 is liable to pay tax during the ten quarters in question. The expression " dealer " was defined at the relevant time as meaning : " 'Dealer' means any person who executes any contract or carries on the business of selling or supplying goods in Orissa whether for commission, remuneration or otherwise and includes any firm or Hindu joint family, and any society, club or association which sells or supplies goods to its members ....... A person to be a dealer within the meaning of the Act must carry on the business of selling or supplying goods in Orissa. The expression " business " is not defined in the Act. But, as observed by this court in State of Andhra Pradesh v. Abdul Bakshi and Bros. : " The expression 'business', though extensively used, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tractors at the prices mentioned above, the intention of the company was merely to utilise the difference in price to meet the overhead charges in respect of these articles and that there was no profit making motive." It is unfortunate that in submitting the statement of case the Tribunal stated no facts at all, and merely submitted the question which was submitted by the company and the question which, in the view of the Tribunal, arose out of the order. Even in the order deciding the appeal, the facts found on which the conclusion was based were not clearly set out. The Tribunal observed that, though the primary object of the company was to establish a steel plant, the memorandum authorised the company to carry on " any trade or business " that it thought would be conducive to its interest ; observed the Tribunal : " Judged in this light one cannot find anything wrong if in the initial stages when construction works were going on, the company thought it prudent that instead of keeping its employees idle and bearing the cost of maintenance without any return, utilised them in some subsidiary business which would promote the interest of the company and bring some return. With t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aterials and stores so supplied at the rates specified in the said schedule or memorandum may be set off or deducted from any sums then due, or thereafter to become due to the contractor under the contract, or otherwise or against or from the security deposit. All materials supplied to the contractor shall remain the absolute property of the company, and shall not on any account be removed from the site of the work, and shall at all times be open to inspection by the Engineer-in-Charge. Any such materials unused and in perfectly good condition at the time of the completion or determination of the contract shall be returned to the Engineer-in-Charge's store, if by a notice in writing under his hand he shall so require ......" Attached to the tender form is the schedule which recites : " Recovery of rates of materials to be supplied by H.S.L., for the work of : (1) Construction of brick masonry compound wall around plant area. Northern section, Length 2.4 miles. (2) Construction of brick masonry compound wall around plant area. Southern section, Length 2.30 miles. (3) Construction of brick masonry compound wall around plant area. Marshalling yard section, Length 4.15 miles. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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