Judgment :- 1. Question that has come for consideration in this case is whether the Official Liquidator can be treated as registered dealer within the meaning of S.2(viii) of the Kerala General Sales Tax Act (hereinafter called Sales Tax Act) and therefore legally obliged to collect sales tax in respect of sales effected during winding up proceedings. 2. The Premier Cable Co. Ltd. (In liquidation) was ordered to be wound up by this Court by order dated 18.6.1998 in CR 2/96. Official Liquidator attached to this Court was appointed as Liquidator of the Company with a direction to take charge of the assets and records of the Company. Total liability of the company comes to more than Rs. 150 crores. On the direction of this Court the entire assets of the company relating to lot 1-2 was sold to the first respondent herein for an amount of Rs.6.25 crores. Official Liquidator then filed C.A. 293/02 before the Company Court to direct the first respondent herein to meet the expenses of any cess or sales tax etc. if any become payable on transportation of the materials anywhere since the Official Liquidator is not collecting or remitting any sales tax at the time of the sale of the assets of the company. C.A. 333/02 was filed by the first respondent for clarifying that they are not liable to pay tax on the purchase of goods covered by lot No. 1-2 under the Kerala General Sales Tax Act. Remaining Lot No.1-1,1-3,1-4 and 1-5 were sold in auction by third respondent herein for Rs. 13.76 crores. 3. Question mooted before the learned Company Judge was whether on the sale effected by Official Liquidator, sales tax would be attracted. After passing the order in C.A. 293/02 and connected matter on 30th October, 2002 purchaser had only remitted the bid amount to the Official Liquidator. On the question whether Official Liquidator is duty bound to collect sales tax learned Government Pleader was also heard by the Company Judge. After considering all aspects of the matter learned Company Judge took the view that the Official Liquidator is not bound to collect any tax. Learned Judge held sale conducted by the court through intervention of the Official Liquidator cannot be treated as sale within the meaning of KGST Act. After considering all aspects of the matter learned Company Judge took the view that the Official Liquidator is not bound to collect any tax. Learned Judge held sale conducted by the court through intervention of the Official Liquidator cannot be treated as sale within the meaning of KGST Act. With regard to the machineries learned Company Judge took the view they cannot be treated as taxable item for the second time and as such the claim put forward by the revenue for levy of sales tax was rejected. As far as finished goods are concerned the learned Company Judge took the view the auction purchaser is liable to pay tax. 4. The Assistant Commissioner (Assessment) is aggrieved by the order of the learned Company Judge and has filed this appeal though he was not a party to C.P. 2/96. Special Government Pleader (Taxes) appearing for the appellant submitted that since the Official Liquidator is appointed by the Central Government under S.448 of the Companies Act he should be treated as a registered dealer under S. (viii) of the KGST Act, therefore legally entitled to collect tax. Counsel submitted sale effected by the Official Liquidator would amount to sale effected by Central Government and therefore entitled to collect tax from persons who purchase materials in auction. Learned Government Pleader also made reference to S.17 of the Central Sales tax Act and submitted the Official Liquidator or any person appointed as the receiver of any assets of a company are bound to give notice of its appointment to the appropriate authority. Appropriate authority as defined under S.16 of the Central Sales Tax Act is the authority competent to assess tax on the company. Learned Government Pleader also submitted learned company judge has committed an error in holding that the machineries which were imported long ago has suffered tax at the sale point. It was pointed out the sale by the Official Liquidator is the first sale within the State after it is brought to the State of Kerala. Counsel also submitted the conduct of the Official Liquidator in not informing the taxing authority about the conduct of sale is also violative of S.17 of the Central Sales Tax Act. 5. Counsel appearing for the Official Liquidator submitted that the Official Liquidator cannot be characterised as a dealer within the meaning of Kerala General Sales Tax Act. Counsel also submitted the conduct of the Official Liquidator in not informing the taxing authority about the conduct of sale is also violative of S.17 of the Central Sales Tax Act. 5. Counsel appearing for the Official Liquidator submitted that the Official Liquidator cannot be characterised as a dealer within the meaning of Kerala General Sales Tax Act. Official Liquidator is only a Central Government Officer attached to the Hon'ble High Court. He was appointed to attend the work of winding up of the company. The duty of the Official Liquidator in a winding up proceedings is to dispose of the assets movable or immovable and realise the maximum amount and to disburse that amount among the creditors of the company, secured creditors, workmen creditors and other creditors etc. Since Official Liquidator is not selling any properties belonging to the Central Government or collecting any amount for the Central Government it cannot be said that he is conducting the sale on behalf of Central Government. Further the sale conducted by the Official Liquidator with the sanction of this Court is not for profit making or in the course of business. 6. The Kerala General Sales Tax Act defines the expression "dealer" under S.2(viii) of the Act which reads as follows: "Dealer" means any person who carries on the business of buying, selling, supplying or distributing goods, executing works contract, transferring the right to use any goods or supplying by way of or as part of any service, any goods directly or otherwise, whether for cash or for deferred payment, or for commission, remuneration or other valuable consideration and includes; Explanation - (1) A society (including a co-operative society, club or firm or an association or body of persons, whether incorporated or not which whether or not in the course of business, buys, sells, supplies or distributes goods from or to its members for cash or for deferred payment, or for commission, remuneration or other valuable consideration, shall be deemed to be a dealer for the purposes of this Act; Explanation - (2) The Central Government or a State Government, which whether or not in the course of business buy, sell, supply or distribute goods, directly or otherwise, for cash or. for deferred payment, or for commission, remuneration or other valuable consideration, shall be deemed to be a dealer for the purposes of this Act. for deferred payment, or for commission, remuneration or other valuable consideration, shall be deemed to be a dealer for the purposes of this Act. The above mentioned definition clause stipulates that dealer means any person who carries on the business of buying, selling, supplying or distributing goods, directly or otherwise whether for cash, or for deferred payment or for commission, remuneration or other valuable consideration. Explanation (2) to S.2(viii) stipulates that the Central Government or any State Government which whether or not in the course of business, buy, sell, supply or distributes goods, directly or otherwise, for cash or for deferred payment, or for commission, remuneration or other valuable consideration shall be deemed to be a dealer for the purposes of the Act. Emphasis was also made on the deeming provision contained in the Explanation so as to characterise the Official Liquidator as a "dealer". We are of the view expression "carries on the business of buying, selling" qualifies the expression "dealer". Word "carrying on business' requires something more than merely selling or buying etc. Almost identical question came up for consideration before the Apex Court in State of Tamil Nadu v. Board of Trustee of the Port of Madras UT 1999 (2) SC 410). Question across in that case was whether the Madras Port Trust would come within the expression "dealer" under the Tamil Nadu General Sales Tax Act, 1959 and is carrying on business within the meaning of the said Act. Apex Court elaborately dealt with the meaning of the expression "dealer" as well as "business" and also the expression "carrying on business" and held the Port Trust was not constituted by Parliament to 'carry on business'. The court further held as follows: "We now come to the second category of cases cited for the respondent, Port Trust where the main activity of the person or body does not amount to 'carrying on business.' If that be the case the activities will stand far removed from any business. Let us assume that such "non-business" activities might result (say) in some scrap or unwanted material which should be clared so that accommodation could be saved. If the sales were then made with an intention to reduce the congestion and not with the intention of running an independent business in the scrap or unwanted material, then would they be liable to sales-tax? If the sales were then made with an intention to reduce the congestion and not with the intention of running an independent business in the scrap or unwanted material, then would they be liable to sales-tax? If in such situations, the activities of sale of the scrap or unwanted material were only a very infinistesimal part of the activities when compared with the main "non-business" activity, could they be brought under the tax net? In our view, if the main activity was not 'business', then the connected, incidental or ancillary activities of sales would not normally amount to business unless an independent intention to conduct 'business' in these connected, incidental or ancillary activities is established by the revenue. It will then be necessary to find out whether the transactions which are connected, incidental or ancillary are only an infinitesimal or small part of the main activities. In other words, the presumption will be that these connected, incidental or ancillary activities of sales are not 'business' and the onus of proof of an independent intention to do 'business' in these connected, incidental and ancillary sales will rest on the Department. If, for example, these connected, incidental or ancillary transactions are so large as to render the main activity infinitesimal or very small, then of course the case would fall under the first category referred to earlier. In the above case the Apex Court has surveyed all the previous decisions in the point. Therefore we need not elaborately examine all the decisions cited by counsel on either side. Further those decisions cited were rendered prior to the decision of the Apex Court in Port Trust case. There is another decision of the Apex Court in Commissioner of Sales Tax v. Sai Publication Fund, JT 2002 (3) SC 295 wherein the Apex Court was dealing with the expression "dealer" and "business" under the Bombay Sales Tax Act, 1959. Apex Court held under S.2(11) of the said Act every person is not "dealer" but only those persons "who carry on the business" by buying or selling goods are regarded as "dealer". The court held that a person would not be a dealer in respect of the goods sold or purchased by him unless he carries on the business of buying and selling such goods. The court held that a person would not be a dealer in respect of the goods sold or purchased by him unless he carries on the business of buying and selling such goods. In that case the Apex Court held that the activity of publishing and selling literature, books and other literature is obviously incidental or ancillary to the main activity of spreading message of Sai Baba and not to any business as such even without profit motive and it is in a way a means to achieve the object of the trust through which message of Sai Baba is spread. It is clear from the trust deed and objects contained therein that it was not established with an intention of carrying on the business/ occupation of selling or supplying goods. This being the position, it cannot be said that the trust carries on the business of selling and supplying goods so as to fall within the meaning of "dealer" under S.2(11) of the Act. Madras Port Trust case was also considered by the Apex Court in Sai Publication case. 7. The principle laid down by the Apex Court in the above mentioned decisions would show that the primary and dominant activity of the person or concern has to be looked into in order to determine whether they would fall within the meaning of dealer. In the Port Trust case it has been found by the Apex Court that if the main activity was not business, then the connected, incidental or ancillary activities of sales would not normally amount to business unless independent intention to conduct business in these connected, incidental or ancillary activities is established by the revenue. The above mentioned case also would establish that in such situation presumption would be that these connected, incidental or ancillary activities of sales are not business and the onus of proof of an independent intention to do business in these connected, incidental and ancillary sales would rest on the department. 8. We may examine whether the Official Liquidator is carrying on business as his main activity. While discharging his statutory duties as Official Liquidator he may sell properties in the course of winding up proceedings as per directions from the Company Court. 8. We may examine whether the Official Liquidator is carrying on business as his main activity. While discharging his statutory duties as Official Liquidator he may sell properties in the course of winding up proceedings as per directions from the Company Court. Considering the nature of the duties of the Official Liquidator it cannot be said that Official Liquidator is conducting any business or his main activities is sale of the properties. The Official Liquidator while discharging his statutory duties would dispose of the assets movable or immovable and realise the maximum amount so as to disburse that amount among the creditors of the company, secured creditors, workmen creditors and other creditors. As far as an industrial company is concerned, the only amount to be realised by Official Liquidator is the sale proceeds from the assets charged to its secured creditors, i.e. Banks, Financial Institutions etc. Official Liquidator conducts sale of the properties with the sanction of the Company Court and not conducting any profit making business. The sale of movable or immovable properties by the Official Liquidator only ancillary and connected with the statutory duties which is not carrying on any business. The factum of appointment of the Official Liquidator by Central Government is not the criteria but the nature of the functions he discharges. 9. Counsel on either side cited several decisions before us, State of Tamil Nadu v. Board of Trustees of the Port of Madras (1999 (2) JT 410), Indian Institute of Technology v. State of U.P. ((1997) 38 STC 428 (All.)), Dy. Commissioner v. SITR Association, ((1978) 41 STC 197 (Mad.)), State v. Cement Research Institution of India, ((1992) 86 STC 124 (Mad.)), State of Tamil Nadu v. Burmah Shell, (1973 (3) SCC 511) Shivlal v. State of Maharashtra ((1990) 79 STC 202) Braemore Estates Ltd. v. State of Kerala, ((1990) 78 STC 263) Dy. Commissioner of Sales Tax v. S.K. Arts, 1987 (1) KLT 250, Shanmugha Traders v. State of Tamil Nadu, ((1999) 114 STC 1 etc. In view of the decision of the Apex Court in Madras Port Trust case as well as Sai Publication case we need not elaborately deal with the various decisions cited before us since the principles laid down by the Apex Court referred to hereinabove would resolve the issue. 10. In view of the decision of the Apex Court in Madras Port Trust case as well as Sai Publication case we need not elaborately deal with the various decisions cited before us since the principles laid down by the Apex Court referred to hereinabove would resolve the issue. 10. Considering the nature of the duties performed by the Official Liquidator we are of the view he is not bound to collect any sales tax in respect of sale of assets belonging to the company in liquidation conducted by him with the sanction of the court. We therefore hold the Official Liquidator would not come within the expression "dealer" under the K.G.S.T. Act. We therefore find no reason to interfere with the order of the learned Company Judge. Appeal lacks merits and the same is accordingly dismissed.