JUDGMENT P. C. BANERJI (Technical Member). - This is an application under section 8 of the West Bengal Taxation Tribunal Act, 1987, filed by the Calcutta Swimming Club and its Secretary challenging the notices of assessment for 5 years from April 1, 1984 to March 31, 1989, issued by the Commercial Tax Officer, Esplanade charge. 2. The case of the applicant is that the Calcutta Swimming Club is an unincorporated club constituted by its members for rendering services to them from its premises situated as 1, Strand Road, Calcutta-1. The club is not a dealer within the meaning of the Bengal Finance (Sales Tax) Act, 1941, (hereinafter called "the Act") and is not obliged to get itself registered under the provisions of the said Act. The club does not sell any goods but merely provides goods to its members acting as their agent. It is, therefore, not liable to pay any tax under the Act as its transactions do not constitute sale within the meaning of the Act. The Legislature did not seek to treat the provision of food, drinks, etc., by the club to its members as a sale where the club was merely acting as an agent of its members. In case the transaction is in the nature of sale as defined in the Act then only the club would be liable to pay tax in terms of explanation 1 of section 2(c) of the Act. But if there is no sale at all and the transaction is one between the agent and its principal then the Constitution (Forty-sixty Amendment) Act, 1982, does not seek to make such transaction one of sale. As an unincorporated club has got no separate existence from that of its members and as the definition of "sale" in the Act does not include such a transaction as deemed sale, the club cannot be held to be a dealer. The Forty-sixty Amendment of the Constitution by inserting clause (29A) in article 366 widened the scope and ambit of entry 54 of the State List, namely, "tax on sale or purchase of goods". It, therefore, conferred legislative competence on the State Legislature to levy "a tax on the supply of goods by any unincorporated association or body of persons to a member thereof for cash, deferred payment or other valuable consideration". It, therefore, conferred legislative competence on the State Legislature to levy "a tax on the supply of goods by any unincorporated association or body of persons to a member thereof for cash, deferred payment or other valuable consideration". But the Legislature of the State, though being competent, did not make suitable provision in the Act for making such supply as deemed sale. In view of this position no tax can be levied on the supply of goods by the applicant, which is an unincorporated club. The applicant, therefore, challenged the competence of the respondents to assess tax and prayed that the impugned notices in form VI for assessment for the years in question be quashed. 3. The respondents have opposed the application on the ground that the applicant is a dealer and the transaction between the said club and its members constitutes sale and that the club is not acting merely as an agent of its members as claimed by the applicant. The respondents have claimed that even prior to the Forty-sixty Amendment of the Constitution the definition of the word "dealer" included within its ambit all types of clubs whether incorporated or unincorporated. The taxes, however, were not realised from the unincorporated clubs in view of some legal constraints but with the passing of the said Forty-sixth Amendment such constraints were removed with the result that the taxability of the sales made by made by such unincorporated clubs to its members has now been revived from a state of suspended animation. The respondents have controverted the contention of the applicant that in order to bring the unincorporated clubs within the net of taxation the State Legislature is required to adopt the said Constitutional amendment in so far as it relates to the imposition tax on such clubs. They have claimed that since the provision to tax such clubs was already there in the statute from before the passing of the said Constitutional amendment the said provision which has been lying in a state of dormancy, became operative after the said amendment. Whatever infirmities were there with regard to legislative competence were fully cured and there was no question of any fresh adoption of the constitutional amendment in the State Act. In view of this position they averred that the applicant became a dealer in terms of the definition of the said expression in the Act. 4. Whatever infirmities were there with regard to legislative competence were fully cured and there was no question of any fresh adoption of the constitutional amendment in the State Act. In view of this position they averred that the applicant became a dealer in terms of the definition of the said expression in the Act. 4. The main question for determination in this case in whether an unincorporated club while supplying goods to its members is carrying on the business of selling and is a dealer in terms of section 2(c) read with section 2(g) of the Act. 5. Mr. Sasanka Sen, learned Advocate for the applicant, argued that the position of unincorporated clubs obtaining prior to the Forty-sixth Amendment still continues as no provision in line with sub-clause (e) of clause (29A) of article 366 has yet been incorporated in the State law and hence there was no statutory backing for imposing sales tax on such clubs. He contended that unless the definition of "sale" in the State Act was amended to include the relevant transactions, as has been done in some other States, such clubs could not be taxed. He referred in this connection to certain clarifications given by the Commissioner of Commercial Taxes in this regard confirming the position advocated by him. 6. Mr. P. K. Chakraborty, the learned State Representative, on the other hand, contended that there was a pre-existing provision to tax such clubs in the State sales tax law, which was validated and supported by the constitutional amendment, as is evident from the explanation to the definition of the term "dealer". He further contended that any interpretation or clarification given by an executive authority could not be allowed predominance over the legislative will. 7. In order to include certain transactions within the ambit of sale, entry 54 of the State List was expanded by the Forty-sixth Amendment of the Constitution, which came into force on February 2, 1983. A new clause (29A) was included in article 366 of the Constitution of India. So far as the present case is concerned, sub-clauses (e) and (f) of clause (29A) are relevant. A new clause (29A) was included in article 366 of the Constitution of India. So far as the present case is concerned, sub-clauses (e) and (f) of clause (29A) are relevant. These read as under; "(29A) 'tax on the sale of purchase of goods' includes - (a) to (d) ................................; (e) a tax on the supply of goods by any unincorporated association or body of persons to a member thereof for cash, deferred payment or other valuable consideration; (f) ...................................... and such transfer, delivery or supply of any goods shall be deemed to be a sale of those goods by the person making the transfer, delivery or supply is made." 8. Section 6 of the aforesaid Forty-sixty Amendment of the Constitution provided under head "validation and exemption" that the expression "tax on sale or purchase of goods" shall be deemed to include and shall be deemed to have always included, a tax on the supply, by way of or part of any service or in any other manner whatsoever, of goods, being food or any other article of human consumption or any drink (whether or not intoxicating) for cash, deferred payment or other valuable consideration. Every such transaction shall be deemed to be, and shall be deemed to have been, a transaction by way of sale. A similar provision was made in Bengal Finance (Sales Tax) Act, 1941, by inserting section 26A which gave retrospective effect to sub-clause (ii) of clause (g) of section 2 (definition of "sale" of the Act. 9. The effect of all these provisions was that the State imposed a tax on supply of food, etc., with retrospective effect. This could be done because the State Legislature amended the definition of "sale" on being given competence to legislate with regard to such supply by the constitutional amendment. It is not that the Forty-sixth Amendment brought in the law. The Forty-sixth Amendment only gave the State Legislature the competence to legislate. It was the State Legislature which has to bring in the law by making appropriate provision in the Act. 10. The Forth-sixth Amendment of the Constitution only validated the law which was passed before the commencement of the said amendment, which authorised the imposition of a tax on food and drinks supplied in hotel or restaurant, etc. Lack of legislative competence was only cured. 10. The Forth-sixth Amendment of the Constitution only validated the law which was passed before the commencement of the said amendment, which authorised the imposition of a tax on food and drinks supplied in hotel or restaurant, etc. Lack of legislative competence was only cured. But if there was no such law, the Constitution Amendment did not bring in the law. The amendment only expanded the legislative entry and competence. This did not have the effect of altering the definition of "sale" in the State Act. The result of the Constitution Amendment Act was that if any State sales tax law had included any transaction of supply of food and drinks in the definition of "sale", then such a provision, though it lacked legislative competence at the time when it was enacted, stood validated by the said amendment. [See Sree Annapoorna v. State of Tamil Nadu [1986] 63 STC 18 (Mad.) and Rambagh Hotels Pvt. Ltd. v. Commercial Taxes Officer [1990] 78 STC 35 (Raj)]. 11. Let us now see the position with regard to unincorporated clubs before the constitutional amendment came into being. Supply of goods to members by such clubs was not taxable as the transaction did not partake of the nature of sale. An unincorporated club or association, in law, has no separate existence from that of the members. A transaction, in order to be subject to the levy of sales tax under entry 54 of the State List, needed the following ingredients, viz., parties competent to contract, mutual assent, and transfer of property in goods from one of the parties to the contract to the other party thereto for a price. As an unincorporated club or association was the same as its members the basic ingredients of sale were thus found to be missing. To enable State legislature to levy sales tax on such clubs an appropriate provision was made in the Constitution by the aforesaid amendment. 12. The question before us is whether armed with powers as a result of the constitutional amendment, the State Legislature did use such powers to make suitable enactment to tax such clubs. It is one thing to have competence and quite another to exercise such competence to bring in appropriate legislative measures in conformity with such competence. 12. The question before us is whether armed with powers as a result of the constitutional amendment, the State Legislature did use such powers to make suitable enactment to tax such clubs. It is one thing to have competence and quite another to exercise such competence to bring in appropriate legislative measures in conformity with such competence. The contention of the learned State Representative that there was already a provision in the Act that a club or association selling goods to its members is a dealer and that the said provision stood resuscitated after the constitutional amendment came into force does not appeal to be tenable. Unless the transaction itself is deemed to be sale such an effect could not take place. It is for the Legislature to create a fiction of sale so that the transaction could be made taxable. This does not appear to have been done by the Legislature in its own wisdom. The does not appear to have been done by the Legislature in its own wisdom. The obvious conclusion, therefore, is that an unincorporated club is not a dealer as its transaction in question with its members does not constitute sale. 13. In the premises, the application succeeds and is allowed. The impugned notices of assessment under form VI are hereby quashed. There will be no order for costs. B. C. CHAKRABARTI (Chairman). - I agree. L. N. RAY (Judicial Member). - I agree. Application allowed.