JUDGMENT The judgment of the Court was delivered by M. SRINIVASAN, C.J. - The question referred to this Court for decision is as follows : "Whether, on the facts and in the circumstances of the case, the applicants/M/s. Himachal Pradesh Road Transport Corporation, dealing with the disposal of articles like chassis, tyres, tubes, spare, parts and vehicles which it thinks are not useful for public use, through the same can be used for other purposes after some repair be considered 'dealer' within the definition of 'dealer' as given in section 2(c) of the Himachal Pradesh General Sales Tax Act 1968 ?" 2. The relevant facts for the purpose of answering this reference are very short which are as follows : The Himachal Pradesh Road Transport Corporation was constituted under the provisions of Road Transport Corporation Act, 1950. The Corporation came into existence on October 2, 1974. The Corporation sold old vehicles/stores, etc., for the first time on November 6, 1974 in Mandi Region for Rs. 1,67,227. It was effecting sales in every year of the old spare parts and old vehicles which were found to be unserviceable for them through they were useful to others. In the year 1974-75, there was no sale from December 6, 1974 to March 31, 1975 and no sales tax was involved. In the year 1975-76, the corporation's gross turnover was Rs. 2,92,046.50, in the year 1976-77, the gross turnover was Rs. 11,62,713.52 and the year 1977-78, the gross turnover was Rs. 18,61,554.22. For the said three years, the Corporation was assessed to sales tax and the assessing authority passed an order on June 30, 1979. On appeal the Deputy Excise and Taxation Commissioner, Himachal Pradesh (South Zone), Shimla, rejected the connection of the Corporation that it is was not a dealer and it was not doing business within the meaning of the H.P. General Sales Tax Act, 1968. The order of assessment was confirmed by the Excise and Taxation Commissioner by his order dated September 30, 1980. The Corporation filed an appeal which was taken as revision under section 31 of the H.P. General Sales Tax, Act, 1968 by the Excise and Taxation Commissioner. He dismissed the same by his order dated January 7, 1982. The Corporation preferred a further revision under section 31 of the H.P. General Sales Tax Act 1968 before the Financial Commissioner, H.P. Shimla. He dismissed the same by his order dated January 7, 1982. The Corporation preferred a further revision under section 31 of the H.P. General Sales Tax Act 1968 before the Financial Commissioner, H.P. Shimla. He did not agree with the contention of the Corporation and held that it was liable to pay sales tax as assessed. That order is dated March 28, 1984. 3. Thereafter, the Corporation applied under section 33 of the Himachal Pradesh General Sales Tax Act, 1968 for referring the question of law arising out of the said order to this Court. The financial Commissioner, passed an order on November 28, 1986, referring the aforesaid question to this court. 4. It is the contention of the Corporation that through the definition of "business" may include the sale of the old vehicles and spare parts by the Corporation, it is not a "dealer" as defined by the Act and consequently it is not liable to pay sales tax. The definition of "business" is found in section 2(aa). It reads as follows : "2(aa) 'business' includes - (i) 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 with a motive to make gain or profit and whether or not any gain or profit accrues from such trade, commerce, manufacture, adventure or concern; and (ii) any transaction in connection with, or incidental or ancillary to, such trade, commerce, manufacture or concern." 5. According to the learned counsel, the activity in which the Corporation is including is not really a trade or business activity but it is only a public utility service and the Corporation cannot be treated as dealer doing the business as defined by the Act. In support of this contention, he has placed reliance on several decisions. The question is not res integra. The matter has been considered by the Supreme Court at least in four cases and a ruling has been given. 6. In state of Tamil Nadu v. Burmah Shell Oil Storage and Distributing Co. of India Ltd. [1973] 31 STC 426 (SC), the court had considered whether sales of advertisement materials and scrap and canteen sales by the said company were not liable to sales tax. The court answered the question in affirmative. 6. In state of Tamil Nadu v. Burmah Shell Oil Storage and Distributing Co. of India Ltd. [1973] 31 STC 426 (SC), the court had considered whether sales of advertisement materials and scrap and canteen sales by the said company were not liable to sales tax. The court answered the question in affirmative. While doing so, the court discussed some of the judgments cited before it, one of them being Deputy Commissioner of Commercial Taxes, Coimbatore Division v. Sri Thirumagal Mills Limited [1967] 20 STC 287 (Mad). After referring to some of the passages of the judgment, the court observed as under : "In this view it held that the fair price shop which the assessee, a spinning mill manufacturing cotton yarn, had opened to make available to its workmen sale of commodities at fair prices could not be said to be carrying on the business of selling commodities in the fair price shop in a trade or commercial sense even if profit accrued to it and it and it was, therefore, with reference to the fair price shop, not a dealer within the meaning of the Act. This decision does not take note of the word 'such' in the second sub-clause, which, in our view, imports by reference the definitions in sub-clause (i) into that of sub-clause (ii). A similar question came up for consideration before the Andhra Pradesh High Court on the analogous provisions of the Andhra Pradesh General Sales Tax Act in Hyderabad Asbestos Cement Products Ltd. v. State of Andhra Pradesh [1972] 30 STC 26. In that case, the assessee-company maintained a canteen for the use of workers in compliance with the provisions of the Factories Act, 1948, and the Rules made thereunder. The question was, whether the turnover relating to the supplies tax under the Andhra Pradesh General Sales Tax Act, 1957. The assessee contended that it was compelled by statue to provide and maintain a canteen for use of workers, that the canteen was not run with a profit-motive, as such it could not be said that there were any sales when food and drink were supplied to the workers at the canteen and that even if profit-motive was not an ingredient of 'business' it must be established that the assessee intended to do business in food and drink before it could be subjected to the levy of sales tax. The court held that in view of the definition of 'business' as amended by the Amendment Act of 1966, proof of profit-motive is unnecessary to constitute business and that the transaction of supply of food and drink to the workmen in the canteen maintained by the assessee, in pursuance of the Factories Act and the Rules, were sales and constituted business for the purpose of the Act. Dealing with the case of Deputy Commissioner of Commercial Taxes v. Sri Thirumagal Mills Limited [1967] 20 STC 287 (Mad), the learned Judges said that they were unable to agree with that case as the Madras High Court had not paid sufficient attention to the word 'such' occurring in the second part of the definition, which according to them obviously referred to the 'trade, commerce manufacture, adventure or concern' mentioned in the first of the definition, that is to say, 'trade', commerce, manufacture, adventure or concern' of which a motive to make gain or profit is not and essential request, nor was it permissible to hold that there was no 'business' in the commercial sense of 'business' with a motive to make profit, when such motive has been expressly declared unnecessary by the Legislature. In their view under both parts of the definition profit-motive is now immaterial and the concept of business in respect of matters falling under section 2(d)(ii) in the commercial sense put forward and accepted in the earlier cases must be abandoned. We think the view adopted by the Andhra Pradesh High Court is in consonance with our own reading of the section which we have indicated earlier." 7. The court went on to observe that the sales of scrap consisting of spoiled drums, hose pipes, etc., which were also held to be connected with the business of the company and it was a finding of fact and the very nature of the particular scrap prima facie indicated that it was connected with the business of the company. The court went on to observe that the sales of scrap consisting of spoiled drums, hose pipes, etc., which were also held to be connected with the business of the company and it was a finding of fact and the very nature of the particular scrap prima facie indicated that it was connected with the business of the company. The court observed as follows : "This Court had observed, it cannot be presumed that when the goods were acquired, there was an intention to carry on business in those discarded materials nor are the discarded goods by-products or subsidiary products or are produced or are produced in the course of manufacturing process; that they are fixed assets of the company or are goods which are incidental to the acquisition or use of stores or commodities consumed in the factory and that when these go into the profit and loss account of the business and may indirectly be said to reduce the cost of production of the principal item, the disposal of those goods on the account cannot be said to be part of or incidental to the main business of selling textiles. As the scrap in that case was not held to be incidental to the acquisition or use of stores or commodities consumed in the factory, the turnover was not included but in the case of caustic liquor which is regularly and continuously accumulated in the tanks in the process of mercerisation of cloth, this Court held that being a waste material it has still a market amongst other manufacturers or launderers as by-products or subsidiary products in the course of manufacture, and the sale thereof is incidental to the business of the company. In the view we hold the scrap sold is certainly connected with the business of the company and the turnover in respect of this commodity is liable to tax. It cannot also be said that the turnover in respect of the sale of the assessee's advertisement materials at cost price or less than cost price is not connected with the business of the assessee." 8. The above passage discloses the test prescribed by the Supreme Court was that the waste material has a market amongst other manufacturers as by-product or subsidiary product in the course of manufacture, and the sale thereof is incidental to the business of the company. The above passage discloses the test prescribed by the Supreme Court was that the waste material has a market amongst other manufacturers as by-product or subsidiary product in the course of manufacture, and the sale thereof is incidental to the business of the company. It was also held that the business of sale in canteen was incidental to the main business of the Burmah Shell Oil Storage and Distributing Company. 9. In the District Controller of Stores, Northern Railway, Jodhpur v. Assistant Commercial Taxation Officer [1976] STC 423 (SC), the court held that in view of the definition of the word "business" in section 2 of the Rajasthan Sales Tax Act, 1954, as introduced with retrospective effect by the Rajasthan Taxation Laws (Amendment) Act, 1965, sales of unserviceable materials and scrap by the Northern Railway, Jodhpur, were exigible to sales tax. The contention before the court was that the railway was not carrying on the business of buying and selling and therefore the sales of unserviceable material and scrap-iron, etc., would not be a transaction in connection with or incidental or ancillary to "such" trade, commerce, manufacture, adventure or concern. Rejecting that contention, the court held that the railway was concerned in the activity of transportation and therefore engaged in commerce within the meaning of clause (i) of the definition and that the sale of unserviceable materials and scrap-iron, etc., is a transaction in connection with or ancillary to such commerce within clause (ii) of that definition. 10. This decision can be said to be on all fours in the present case and there can be no escape from the proposition laid down in that judgment. 11. In Board of Revenue v. A. M. Ansari [1976] 38 STC 577 (SC), the Forest Department of the Andhra Pradesh held an auction in respect of various items of forest produce, such as, timber, fuel, bamboos, minor forest produce, beedi leaves, tanning barks, parks mohwa, etc., the question was whether the persons who were the highest bidders in respect of some items of the forest produce were liable to pay sales tax on the bid amount under the Act applicable to that State. The court held that in view of the amendment introduced in 1966 the consideration of profit-motive could not be regarded as an essential constituent of the term "business" in section 2(1)(bbb) of the Andhra Pradesh General Sales Tax Act, 1957 but the other ingredients of the "business", namely, volume, frequency, continuity and regularity of transactions of sale and purchase must be satisfied in order that a person could be said to be carrying on the business of selling goods. 12. It was found on the facts that such sales of forest produce were carried on only annually and not at frequent intervals and the important element of frequency was lacking in the case and, therefore, the Government could not be said to be carrying on the business of selling forest produce. 13. The proposition laid down by the court that the volume, frequency, continuity and regularity of transactions of the sale and purchase must be satisfied, is applicable to the present case. It is clear from the facts of this case that the Corporation can be said to be carrying on business within the meaning of the Act. 14. In State of Tamil Nadu v. Binny Ltd., Madras [1982] 49 STC 17 (SC); AIR 1980 SC 2038 , a store was run by the owner of the textile undertaking for sale of provisions to the workmen employees in the factory. The court held that the sales effected in such store were liable to tax as the activity of selling provisions to workmen in the store was incidental to the business of manufacture of textiles and the sales were, therefore, transactions falling within the definition of "business" in clause (ii) of section 2(d) of the Tamil Nadu General Sales Tax Act, 1959, and attract the liability to tax. The judgment of the Madras High Court to the contrary was reversed. 15. The learned counsel for the Corporation draws our attention to the judgment of the Calcutta High Court in Cementation Patel (Durgapur) v. Commissioner of Commercial Taxes, West Bengal, Calcutta [1981] 47 STC 385. It is seen from the case that the applicant therein was carrying on the business as contractor at the material time and registered as a dealer under the Bengal Finance (Sales Tax) Act, 1941. It is seen from the case that the applicant therein was carrying on the business as contractor at the material time and registered as a dealer under the Bengal Finance (Sales Tax) Act, 1941. The contention of the applicant was that the transactions which consisted of transfer of materials to its member-contractors and its own sub-contractors in connection with one particular work, namely, the construction of a steel plant at Durgapur, were not liable to assessment under the said Act for sales tax. The court accepted that contention and laid down the following proposition : "(a) Even under the extended definition of the expression 'business' it is to be determined by the sales tax authorities whether in carrying on isolated transactions the person sought to be charged to sales tax is carrying on business as a dealer, i.e., the business in selling the items concerned. If this is found to be so then sales tax would be exigible in respect of the items sold or dealt with in the said transactions. (b) If the main business of the person concerned is such that he cannot be held to be a 'dealer' within the meaning of the sales tax statutes in respect of such business then the transactions connected with or ancillary to such business though in the nature of sale will not make the person concerned a 'dealers'." 16. The second proposition laid down as above runs counter to the judgment of the Supreme Court in State of Tamil Nadu v. Binary Ltd., Madras [1982] 49 STC 17; AIR 1980 SC 2038 . It is seen that the judgment of the Supreme Court was rendered later than the judgment of the Calcutta High Court. Hence, the judgment of the Calcutta High Court cannot be accepted by us a correct. 17. Reliance is also placed on the judgment of the Orissa High Court in State of Orissa v. Orissa Road Transport Company Ltd. [1983] 53 STC 329. 18. After referring to the judgments in State of Tamil Nadu v. Burmah Shell Oil Storage and Distributing Co. 17. Reliance is also placed on the judgment of the Orissa High Court in State of Orissa v. Orissa Road Transport Company Ltd. [1983] 53 STC 329. 18. After referring to the judgments in State of Tamil Nadu v. Burmah Shell Oil Storage and Distributing Co. of India Ltd. [1973] 31 STC 426 (SC), District Controller of Stores, Northern Railway, Jodhpur v. Assistant Commercial Taxation Officer [1976] 37 STC 423 (SC) and Board of Revenue v. A. M. Ansari [1976] 38 STC 577 (SC), the court observed as follows : "The assessee's main business is running of buses and providing transport facilities to the travailing public. Though one of the objects related to disposal of its own discarded parts, that certainly was not its business. The disposal was an annual event. The assessee did not devote its time and attention for the purpose of having the transactions of disposal of spares and scraps. There was no frequency or repetition of the dealing. There is some force in the submission of the learned standing counsel that no general guideline can be laid down to deal with cases of every type. Yet, on the facts of the case, we are inclined to agree with the Additional Tribunal that the transactions which have been taken as sales on the footing that they constituted the assessee's business did not really constitute its business and with reference to that the assessee could not be treated as a dealer under the Act." 19. The court proceeded to refer to the definition of "ancillary" as found in the dictionary and also referred to the judgment of the Supreme Court in State of Tamil Nadu v. Binny Ltd., Madras [1982] 49 STC 17; AIR 1980 SC 2038 . 20. As far as the passage extracted above is concerned, we are unable to appreciate on what basis the court said that on the facts of the case they were inclined to agree with the Tribunal that the transactions were not within the scope of the Act. The court has not made it clear as to which fact was taken into consideration for the purpose of coming to that conclusion. The decision can be understood as applicable to the facts of that case only. The court has not made it clear as to which fact was taken into consideration for the purpose of coming to that conclusion. The decision can be understood as applicable to the facts of that case only. However, after referring to the judgment of the Supreme Court in Binny's case [1982] 49 STC 17; AIR 1980 SC 2038 the court has not chosen to apply the ratio of that of that case in the case on hand. It is rather surprising that after referring to the judgment of the Supreme Court, it has not been followed by the Bench of the Orissa High Court. Hence we cannot accept the said judgment to be of any assistance. 21. Learned counsel has also placed reliance on State of Andhra Pradesh v. Andhra Pradesh State Road Transport Corporation [1989] 74 STC 336 (AP). The court mainly placed reliance on the judgment of the Supreme Court in which the court held the Corporation to be a charitable institution within the meaning of section 11(1)(a) of the Income-tax Act, 1961. That judgment is reported in Commissioner of Income-tax, A.P. v. Andhra Pradesh State Road Transport Corporation [1986] 159 ITR 1 (SC). However, the court went on to refer to the judgment of the Supreme Court in District Controller of Stores, Northern Railway, Jodhpur v. Assistant Commercial Taxation Officer [1976] 37 STC 423 and observed that it did not agree with the contention advanced by the Government Pleader. The only sentence found in the judgment is that "the decision relied upon by him would not be of any assistance to him". The judgment does not disclose as to how the judgment of the Supreme Court was not applicable to the facts of the case before them. No reason has been given by the Division Bench. However, the Division Bench proceeded to refer to the judgment in Burmah Shell's case [1973] 31 STC 426 (SC) and observed that the earlier judgment is one of three-Judge Bench while the later one is of two-Judge Bench. 22. We are unable to find out the inference drawn from the said fact by the Division Bench of that High Court. Ultimately, the Division Bench said that they did not agree with department and held that the activities of the Corporation did not constitute business within the meaning of Andhra Pradesh Road Transport Act. 22. We are unable to find out the inference drawn from the said fact by the Division Bench of that High Court. Ultimately, the Division Bench said that they did not agree with department and held that the activities of the Corporation did not constitute business within the meaning of Andhra Pradesh Road Transport Act. This decision will be of no help to the Corporation in this case as there in no proper reasoning in that judgment so as to distinguish the judgment of the Supreme Court in District Controller of Stores, Northern Railway, Jodhpur v. Assistant Commercial Taxation Officer [1976] 37 STC 423. 23. The next contention raised by the learned counsel for the Corporation is that amendment of the Act was introduced only by Act 7 of 1977 which came into force on May 2, 1977. According to him, the definition of "business" was, for the first time, introduced by the Amendment Act and the definition of the "dealer" was considerably amended by the said Act. It is contended that with regard to at least one part of the assessment the Amendment Act or the amended provisions of the Sales Tax Act are not applicable. There is no merit in this contention. The amended Act (7 of 1977) clearly declares that it shall always be deemed to have been part of the parent Act. 24. There is no contention before us that the Legislature has no jurisdiction to pass fiscal enactment with retrospective effect. In fact, validity of the amended Act was not questioned before the authorities. On the other hand, it is also seen from the order of the Financial Commissioner that the party had not challenged the validity of the legislative order with retrospective effect of the said legislation, but the learned counsel says that a question has been raised when the application was made for referring the question of law to this Court. In the said application what is stated, under the heading relief claimed is as follows : "That the amended definition of the word 'dealer' be not applied retrospectively to create a tax liability of the applicant from a date retrospectively." 25. This does not, in any way, challenge the validity of the Act. As such, the prayer is only to the officer concerned not to apply the definition of "dealer" contained in the Act retrospectively. This does not, in any way, challenge the validity of the Act. As such, the prayer is only to the officer concerned not to apply the definition of "dealer" contained in the Act retrospectively. Such a relief cannot be given by the officer so long as the Act declares clearly that it shall it shall always be deemed to have been in force. 26. In the circumstances, the only answer to the question referred to this Court by the Financial Commissioner is in the affirmative that the Himachal Pradesh Road Transport Corporation, dealing with the disposal of articles like chassis, tyres, tubes, spare parts and vehicles which it thinks are not useful for public use, though the same can be used for other purposes after some repair be considered "dealer" within the definition of "dealer" as is given in section 2(c) of the Himachal Pradesh General Sales Tax Act, 1986. Reference answered in the affirmative.