State of Orissa Vs. Messrs Orissa Road Transport Company Limited, Chief Accounts Officer
occasional transactions of a business nature involving purchasing, selling, supplying or distribution or goods, whether for commission, remuneration or otherwise. This means that even if a person did not have a systematic or an organised business involving regular transactions of purchases and sales he could still be regarded as a casual dealer if he entered into occasional transactions of a business nature involving purchases, sales etc. of the goods. In the cases cited by Mr. Misra there was no consideration of this aspect at all. 10. It cannot be denied that the respondent is a business organisation whose activity is that of providing road transport. In the course of its carrying on of the said business some obsolete parts, spare parts etc. are not required by it. As a prudent business organisation the said items, which were obviously used or intended for use in its business, are sold when there is no requirement for them. We find it difficult to accept that such sales cannot even be regarded as occasional sales of a business nature which would make the respondent a casual dealer within the meaning of that expression occurring in Section 2[bb] of the said Act. In the case of State of Tamil Nadu Vs. Burmah Shell Oil Storage and Distributing Co. of India Ltd. and Anr. this Court was concerned, inter alia, with the sale of scrap where the definition of the word business in the Madras General Sales Tax Act had done away with motive for making profit as being a relevant consideration in determining whether the assessee carried on business or not. Section 2(d) of the Madras Act was similar to the present definition in Section 2(b) of the Orissa Act and it included the words "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 profit accrues from such trade, commerce, manufacture, adventure or concern". In connection with the sale of scrap it was observed at page 433 as follows: "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 of the assessees advertisement materials at cost price or less than cost price is not connected with the business of the assessee. Calendars, wallets and key chains are all given by the dealers to its customers for purposes of maintaining and increasing the sales of the products of the assessee and is therefore, connected with the business. What the assessee is doing is to facilitate the dealers to acquire at their cost such advertising by the assessee-company which, instead of allowing each of them to have these separately printed or manufactured, itself undertook to do go and supplied them to its dealers. The supply of such material is in our view being connected with the business is liable to be included in the turnover of the assessee." * 11. In the District Controller of Stores, Northern Railway, Jodhpur Vs. The Assistant commercial Taxation Officer and Anr. this Court was concerned with a question whether the sales of unserviceable material and scrap by the Northern Railway, Jodhpur, was exigible to sales tax. the Rajasthan Sales Tax Act had been amended and, like the Madras Sales Tax Act and the Orissa Sales Tax Act the definition of business had eliminated the profit making element and keeping this in view this Court held that the activity of the appellant in selling unserviceable material and scrap would be business within clause 1 of the definition of the word business introduced by the amending Act. This Court held even if it be assumed that the activity involved in selling unserviceable material and scrap-iron etc. may not amount to carrying on business in the normal connotation of that term, it would still be business within the meaning of the expression business occurring in the said Act. Such sales were, therefore, to be held to exigible to sales tax.The definition of the word business in the Orissa Act being perimateria with the definition of such expression in the Madras Act as well as the Rajasthan Act, the ratio of the decision in Burmah Shell case (supra) and the District Controllers case (supra) would be clearly applicable in the instant case and, therefore, the respondent will have to be regarded as a dealer carrying on the business of selling spare parts etc. and thereby become liable to pay sales tax on the sale of such items. 12. It was submitted by Mr. Misra that neither the High Court nor the other authorities had gone into the question as to whether the respondent could be regarded as a casual dealer. It is true that apparently the attention of the High Court was not drawn to Section 2[bb]. This, however, can be of no assistance to the respondent because on the facts as found by the Tribunal it is evident that the provisions of Section 2[bb] are clearly attracted to the instant case. If the High Court has ignored a relevant statutory provision and then come to a wrong conclusion that cannot be a ground for the respondent to contend that Court should also not refer to the said sub-section. The contention of the respondent would have been correct if the applicability of Section 2 [bb] depended on the investigation of facts and that had not been done. However, the facts as found here clearly disclose that the respondent has to be regarded at least as a casual dealer. The mere fact that the High Court over-looked the said provision cannot be a ground for the respondent to contend that this Court should not go into that question. 13. In our opinion the High Court was not right in concluding that the respondent was not a dealer who was liable to pay sales tax on the sales of the spare parts etc. made by it.
1[ds]It cannot be denied that the respondent is a business organisation whose activity is that of providing road transport. In the course of its carrying on of the said business some obsolete parts, spare parts etc. are not required by it. As a prudent business organisation the said items, which were obviously used or intended for use in its business, are sold when there is no requirement for them. We find it difficult to accept that such sales cannot even be regarded as occasional sales of a business nature which would make the respondent a casual dealer within the meaning of that expression occurring in Section 2[bb] of the saidis true that apparently the attention of the High Court was not drawn to Section 2[bb]. This, however, can be of no assistance to the respondent because on the facts as found by the Tribunal it is evident that the provisions of Section 2[bb] are clearly attracted to the instant case. If the High Court has ignored a relevant statutory provision and then come to a wrong conclusion that cannot be a ground for the respondent to contend that Court should also not refer to the said sub-section. The contention of the respondent would have been correct if the applicability of Section 2 [bb] depended on the investigation of facts and that had not been done. However, the facts as found here clearly disclose that the respondent has to be regarded at least as a casual dealer. The mere fact that the High Court over-looked the said provision cannot be a ground for the respondent to contend that this Court should not go into thatour opinion the High Court was not right in concluding that the respondent was not a dealer who was liable to pay sales tax on the sales of the spare parts etc. made by
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occasional transactions of a business nature involving purchasing, selling, supplying or distribution or goods, whether for commission, remuneration or otherwise. This means that even if a person did not have a systematic or an organised business involving regular transactions of purchases and sales he could still be regarded as a casual dealer if he entered into occasional transactions of a business nature involving purchases, sales etc. of the goods. In the cases cited by Mr. Misra there was no consideration of this aspect at all. 10. It cannot be denied that the respondent is a business organisation whose activity is that of providing road transport. In the course of its carrying on of the said business some obsolete parts, spare parts etc. are not required by it. As a prudent business organisation the said items, which were obviously used or intended for use in its business, are sold when there is no requirement for them. We find it difficult to accept that such sales cannot even be regarded as occasional sales of a business nature which would make the respondent a casual dealer within the meaning of that expression occurring in Section 2[bb] of the said Act. In the case of State of Tamil Nadu Vs. Burmah Shell Oil Storage and Distributing Co. of India Ltd. and Anr. this Court was concerned, inter alia, with the sale of scrap where the definition of the word business in the Madras General Sales Tax Act had done away with motive for making profit as being a relevant consideration in determining whether the assessee carried on business or not. Section 2(d) of the Madras Act was similar to the present definition in Section 2(b) of the Orissa Act and it included the words "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 profit accrues from such trade, commerce, manufacture, adventure or concern". In connection with the sale of scrap it was observed at page 433 as follows: "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 of the assessees advertisement materials at cost price or less than cost price is not connected with the business of the assessee. Calendars, wallets and key chains are all given by the dealers to its customers for purposes of maintaining and increasing the sales of the products of the assessee and is therefore, connected with the business. What the assessee is doing is to facilitate the dealers to acquire at their cost such advertising by the assessee-company which, instead of allowing each of them to have these separately printed or manufactured, itself undertook to do go and supplied them to its dealers. The supply of such material is in our view being connected with the business is liable to be included in the turnover of the assessee." * 11. In the District Controller of Stores, Northern Railway, Jodhpur Vs. The Assistant commercial Taxation Officer and Anr. this Court was concerned with a question whether the sales of unserviceable material and scrap by the Northern Railway, Jodhpur, was exigible to sales tax. the Rajasthan Sales Tax Act had been amended and, like the Madras Sales Tax Act and the Orissa Sales Tax Act the definition of business had eliminated the profit making element and keeping this in view this Court held that the activity of the appellant in selling unserviceable material and scrap would be business within clause 1 of the definition of the word business introduced by the amending Act. This Court held even if it be assumed that the activity involved in selling unserviceable material and scrap-iron etc. may not amount to carrying on business in the normal connotation of that term, it would still be business within the meaning of the expression business occurring in the said Act. Such sales were, therefore, to be held to exigible to sales tax.The definition of the word business in the Orissa Act being perimateria with the definition of such expression in the Madras Act as well as the Rajasthan Act, the ratio of the decision in Burmah Shell case (supra) and the District Controllers case (supra) would be clearly applicable in the instant case and, therefore, the respondent will have to be regarded as a dealer carrying on the business of selling spare parts etc. and thereby become liable to pay sales tax on the sale of such items. 12. It was submitted by Mr. Misra that neither the High Court nor the other authorities had gone into the question as to whether the respondent could be regarded as a casual dealer. It is true that apparently the attention of the High Court was not drawn to Section 2[bb]. This, however, can be of no assistance to the respondent because on the facts as found by the Tribunal it is evident that the provisions of Section 2[bb] are clearly attracted to the instant case. If the High Court has ignored a relevant statutory provision and then come to a wrong conclusion that cannot be a ground for the respondent to contend that Court should also not refer to the said sub-section. The contention of the respondent would have been correct if the applicability of Section 2 [bb] depended on the investigation of facts and that had not been done. However, the facts as found here clearly disclose that the respondent has to be regarded at least as a casual dealer. The mere fact that the High Court over-looked the said provision cannot be a ground for the respondent to contend that this Court should not go into that question. 13. In our opinion the High Court was not right in concluding that the respondent was not a dealer who was liable to pay sales tax on the sales of the spare parts etc. made by it.

### Response:
1

### Explanation:
It cannot be denied that the respondent is a business organisation whose activity is that of providing road transport. In the course of its carrying on of the said business some obsolete parts, spare parts etc. are not required by it. As a prudent business organisation the said items, which were obviously used or intended for use in its business, are sold when there is no requirement for them. We find it difficult to accept that such sales cannot even be regarded as occasional sales of a business nature which would make the respondent a casual dealer within the meaning of that expression occurring in Section 2[bb] of the saidis true that apparently the attention of the High Court was not drawn to Section 2[bb]. This, however, can be of no assistance to the respondent because on the facts as found by the Tribunal it is evident that the provisions of Section 2[bb] are clearly attracted to the instant case. If the High Court has ignored a relevant statutory provision and then come to a wrong conclusion that cannot be a ground for the respondent to contend that Court should also not refer to the said sub-section. The contention of the respondent would have been correct if the applicability of Section 2 [bb] depended on the investigation of facts and that had not been done. However, the facts as found here clearly disclose that the respondent has to be regarded at least as a casual dealer. The mere fact that the High Court over-looked the said provision cannot be a ground for the respondent to contend that this Court should not go into thatour opinion the High Court was not right in concluding that the respondent was not a dealer who was liable to pay sales tax on the sales of the spare parts etc. made by
