Executive Engineer v. Commissioner, Sales Tax, U. P
1992-02-20
R.R.MISRA
body1992
DigiLaw.ai
ORDER R.R. Misra, J. - These two revisions are directed against a consolidated order dated 14-12-1989 passed by the Sales Tax Tribunal in regard to the assessment of the assessee under the U.P. Sales Tax Act for the assessment years 1981-82 and 1983-84. During the said years the assessee, i.e. U.P. State Electricity Board, Lucknow, was although engaged in generating electricity and supply thereof, yet it has sold iron scraps, copper and other old goods from its godown. The claim of the Sales Tax Department in these years was that the assessee is liable to pay sales tax on the sale of said goods. The assessee, however, disputed its liability. The authorities below have taken the view that the assessee is a `dealer' under the U.P. Sales Tax Act and is liable to pay sales tax accordingly. 2. I have heard learned counsel for the parties. Learned counsel for the assessee has in support of his submission that the assesse is not a `dealer' relied upon a decision of this Court in the case of Hind Lamps Ltd., Shikohabad, Mainpuri v. Commissioner of Sales Tax. In this case the dispute related to assessment years 1969-70 to 1971-72 and to the definition of term `dealer' as it existed at that time. The decision in this case in turn is also based on a decision of the Supreme Court in the case of State of Gujarat v. Raipur Manufacturing Co. Ltd., AIR 1967 SC 1066 . The view taken in both these cases is that an assessee who sells waste and discarded mate- rials and who does not sell the same regularly is not a `dealer' and hence no liability to pay sales tax. These cases related to a period prior to the amendments made in 1975 hereinafter referred to later. 3. Learned Standing Counsel, however, on the other hand, has relied upon a decision of this Court in the case of M /s. Government of India Press, Aligarh v. Commissioner of Sales Tax, 1989 UPTC 50. This case related to assessment years 1975-76, 1977-78 to 1981-82 and in this case M/s. Government of India Press, Aligarh had sold waste papers. Relying upon a decision of the Supreme Court in the case of District Controller of Stores, Northern Railway, Jodhhpur v. Asstt. Commercial Taxation Officer, AIR 1976 SC 489 this Court took the view that the M/s. Govt.
Relying upon a decision of the Supreme Court in the case of District Controller of Stores, Northern Railway, Jodhhpur v. Asstt. Commercial Taxation Officer, AIR 1976 SC 489 this Court took the view that the M/s. Govt. of India Press, Aligarh will be included in the definition of `dealer' and liable to pay tax on sale of its waste paper. Learned standing counsel further relied upon a decision of the Supreme Court in the case of Commissioner of Sales Tax v. Madhya Pradesh Electricity Board, (1970) 25 STC 188 : AIR 1970 SC 732 . Relying upon the definition of the word `dealer' as occurring in the C.P. and Berar Sales Tax Act, 1947 under S. 2(c) and S. 2(d) of the Madhya Pradesh General Sales Tax Act, 1959 in respect of its activity of generation, distribution, sale and supply of electric energy it was held in this case that Madhya Pradesh Electricity Board was a 'dealer'. 4. In so far as the U.P. Sales Tax is concerned, the definition of word `dealer' has been amended with effect from 1-6-1975 by U.P. Act No. 12 of 1979. The relevant portion thereof reads as under: "(c) 'Dealer' means any person who carries on business in Uttar Pradesh (whether regularly or otherwise) the business of buying, selling, supplying or distributing goods directly or indirectly for cash or deferred payment or commission, remuneration or other valuable consideration and includes- (i) A local authority, body corporate, company, any co-operative society or other society, club, firm, Hindu undivided family or other association of person which carries on such business: (iv) A Government, which, whether in the course of business or otherwise buys, sells, supplies or distributes goods, directly or otherwise for cash or for deferred payment or for commission remuneration or other valuable consideration: ................" 5. Further the word `business' has also been defined by S. 2(aa) of the U.P. Sales Tax Act and retrospectively amended with effect from 1-4-1982 by the U.P. Sales Tax (Amendment Validation) Act, 1989.
Further the word `business' has also been defined by S. 2(aa) of the U.P. Sales Tax Act and retrospectively amended with effect from 1-4-1982 by the U.P. Sales Tax (Amendment Validation) Act, 1989. The definition of the term `business', as amended by the said Amendment and Validation Act, reads as under: "(aa) "business", in relation to business of buying or selling goods, includes: (i) Any trade, commerce or manufacture or any adventure or concern in the nature of trade, commerce or manufactures, whether or not such trade, commerce, manufacture, adventure or concern is carried on with a motive to make profit and whether or not any profit accrues from such trade, commerce, manufacture, adventure or concern; and (ii) Any transaction of buying, selling or supplying plant, machinery, raw materials, processing materials, packing materials, empties, consumable stores. Waste or 'by products, or any other goods of a similar nature or any unserviceable or obsolete or discarded machinery, or any parts or accessories thereof or any waste or scrap or any of them or any other transaction whatsoever which is ancillary to or is connected with or is incidental to, or results from such trade, commerce, manufacture adventure or concern : But does not include any activity in the nature of mere service or profession which does not involve the purchase or sale of goods." 6. From a perusal of the above definitions it is clear that for holding a person to be a 'dealer' during the years in dispute and under the amended definitions of the terms 'business' as well as 'dealer' it is not necessary that the activity of buying or selling of goods must be a regular activity of that person because of the use of words "or otherwise" in the definition of 'dealer' and also for the fact that the word 'business' includes the sale of waste goods or scrap. In these circumstances, in my opinion, the authorities relied upon by the learned counsel for the assessee are of no help for determining the controversy involved in the present two revisions for the two years in dispute, rather on the other hand, according to the amended definitions as set out above the authorities below were right in holding that the assessee was a dealer within the meaning of U.P. Sales Tax Act and is liable to pay tax accordingly. 7.
7. In the result, the aforesaid two revision fail and are dismissed with one set of costs, which are assessed at Rs. 200/-. The interim orders granted in these revisions are hereby vacated."