MEMBER BOARD OF REVENUE, WEST BENGAL v. CONTROLLER OF STORES EASTERN RAILWAY CALCUTTA, ETC.

The Judgment of the Court was delivered by

H PATHAK, CJ. The question raised in these two appeals is

BOARD OF REVENUE v. CONTROLLER OF STORES !PATHAK, Cl:) 779

whether the assessee Railway in each appeal is a "dealer" within the A meaning of the Bengal Finance (Sales Tax) Act, 1941 and therefore liable to assessment under that Act.

In C.A. No. 845 of 1974 the facts are these.

The assessee South Eastern Railway disposes of unclaimed and B ·r unconnected goods for money consideration. On 1 April, 1952 the t_ assessee applied for registration as a dealer under the Bengal Finance · (Sales Tax) Act in respect of unconnected or unclaimed goods, and was accordingly registered. It submitted returns of sales effected by it of unclaimed and unconnected goods year after year and paid sales tax pursuant to the assessments made by the Sales Tax department. How- ever, in assessment proceedings for the four quarters ending March, c 1959 the assessee applied to the Commercial Tax Officer for cancella- tion of the registration of the assessee as a "dealer" under the Act. The Commercial Tax Officer examined the case and did not accept the contention that the assessee was not a "dealer". On 6 June, 1959 he made an order rejecting the application on the basis that the disposal of Unclaimed goods for valuable consideration was a regular featme of the assessee's activities, and that therefore the assessee fell within the scope of the Act. The assessee applied in revision before the Assistant Commissioher of Commercial Taxes. The only point raised in the revision application was whether the assessee could be treated as a "dealer" within the meaning of the Act. It was stated on behalf of the assessee that unclaimed or unconnected goods came into possession of the assessee but not as a result of any activity of purchase or of man- ufacture for sale. It was pointed out that when such good came into possession of the assessee it acquired rights over the said goods under Section 56 of the Railways Act enabling it tci sell the goods. The.revi- sion petition was rejected on 27 January, 1960 on the finding that'the sales.effected by the assessee.were sales Under .the Act andl that the asses-· '-'· see was a "dealer". The assessee proceeded in further revision the to Commissioner of Commercial Taxes, West Bengal and similar conten- tions were raised before him but the revision·application was dismissed by the Additional Commissioner of Commercial Taxes, who dealt with the case, by order dated 17 June, 1960. The assessee then proceeded in revision before the Board of Revenue, West Bengal. The Board held that a transfer of property was involved in the auction held by the assessee and that therefore a sale of goods took place. The Board further held that the systematic and organised characier of business carried on by the assessee clothed him with the status of a "dealer" . under the Act. At the instance of the assessee the Board of Revenue H

p. 780 Copy page pinpoint

A referred the following question to the High Court at Calcutta for its ').... opinion:

"Whether the petitioner Railway in so far as it effects sales of unclaimed and unconnected goods under the provisions of Section 56 of the Indian Railways Act, is a dealer within B the meaning of Section 2( c) of the Bengal Finance (Sales Tax) Act, 1941?" 'i . j The facts and circumstances in the case out of which Civil Appeal · No. 1069 of 1975 arises are substantially similar to those narrated in the earlier case, except that the assessee here is the Eastern Railway and it is engaged in selling scrap and unserviceable material. The C question referred at the instance of the assessee to the High Court at Calcutta is as follows: ~

"Whether on the facts and in the circumstances of th.e case the Controller of Stores, Eastern Railways is a dealer b engaged in the business of selling scrap and unserviceable materials within the meaning of cl. (c) read with Cl. (g) of Section 2 of the Bengal Finance (Sales Tax) Act, 1941."

The High Court delivered judgment setting forth detailed r~.asons therefor in the case relating to the assessee .Sout~ Eastern E Railway. It held that the disposal of the goods did not indicate that the Railway concerned was carrying on business as a dealer liable to assessment under the Act.

The High Court disposed of the other case on the same basis as found favour with it in the earlier case, and answered the question in fi favour of the assessee.

In these appeals the question is whether theassessee Railway in each case is a "dealer" for the purpose of assessment under the Bengal Finance (Sales Tax) Act, 1941. In the case of·the assessee South Eastern Railway, what were sold were unclaimed goods. The Railway G was a carrier of the goods and if at the stage of delivery goods reinained unclaimed for a period the Railway was entitled to dispose them of. There can be no doubt that the activity of so disposing of the goods was adjunctive to the prinzjpal activity of the carriage of goods by the Railway. It is an activity which may be regarded as necessarily incidental or ancillary to its business as carrier of the goods. It seems to fl .us th~t the assessee South Eastern Railway was a "dealer" for the

BOARD OF REVENUE v. CONTROLLER OF STORES [PATHAK, CJ} 781

~· purposes of the Bengal Finance (Sales Tax) Act, 1941. A

In the other case, the assessee Eastern Railway disposed of scrap and unserviceable material lying with it. The case is covered directly by the decision of this Court in the District Controller of Stores, Nor· thern Railway, Jodhpur v. The Assistant Commercial Taxation Officer · and Another, [1976] 37 S.T.C. 423. . B

In the circumstances the appeals are allowed, the impugned udgment of the High Court in each case is set aside and the questions referred to the High Court are answered in each case in the affirma· tive, in favour of the revenue and against the assessee. The appellant is entitled to his costs in each case. c /- T.N.A. Appeals allowed. '