(1.)In the light of the contentions raised and submissions made on behalf of the parties, the issue that arises for consideration and decision in this appeal is whether the Trust Sai Publication Fund. which has been set up by some devotees of Saibaba of Shirdi for spreading his message, can be held to be a "dealer" in respect of sale of books, booklets, pamphlets, photos, stickers and other publications containing message of Saibaba and the turnover of such publication can be assessed to sales tax under the Bombay Sales Tax Act, 1959 (for short 'the Act').
(2.)The relevant and material facts, leading to filing of this appeal in brief, are that the assessee (the respondent herein) is a Trust created by four devotees of Saibaba of Shirdi under a Trust deed dated 6-8-1984.
The object of the Trust is to spread message of Saibaba of Shirdi. In furtherance of and to accomplish the said object, the assessee publishes books, pamphlets and other literature containing the message of Saibaba under the aegis of "Sai Publications" which are available to the devotees of Saibaba on nominal charge to meet the cost. The sale proceeds of such publication goes to the Trust and forms part of the property of the Trust, which can be utilized only for advancement of the objects of the Trust. There is a specific provision in the Trust deed that in the event of failure of the Trust to carry on its aims and objects, the remaining fund in its hands would be handed over to Sansthanam of Shirdi.
In order to avoid any controversy relating to leviability of sales tax on the amount received on sale of such publications, an application was made by the Trust under S. 52(1)(a) of the Act seeking determination of the questions whether the Trust could be said to be carrying on "business" as defined in S. 2(5A) of the Act and whether it could be considered as a "dealer" within the meaning of S. 2(11) of the Act. The Deputy Commissioner of Sales Tax by his order dated 28-9-1989 held that the activity of publication and sale of books etc. amounted to business falling within the ambit of S. 2(5A) and the Trust was a "dealer" coming within the meaning of S. 2(11) of the Act. Consequently, he held that the Trust was liable to pay sales tax on the value of publications sold by it. What weighed with the Deputy Commissioner in passing the said order was the amendment of the definition of "business" in S. 2(5A) of the Act by the Maharashtra Tax Laws (Levy, Amendment and Repeal) Act, 1989 with retrospective effect from 16-8-1985 to provide that even without profit motive, it can still be "business."
(3.)In the appeal filed before the Maharashtra Sales Tax Tribunal against the said order of the Deputy Commissioner, it was contended on behalf of the Trust that it was not a "dealer" within the meaning of S. 2(11) of the Act as it was not engaged in any activity which amounted to "business" in view of the object and activities of the Trust. The Revenue supported the order of the Deputy Commissioner relying on the amendment of the definition of "business" as a result of which profit motive was immaterial. The Tribunal, after due consideration of rival submissions looking to the object of the Trust and the nature of its activities, concluded that the assessee could not be held to be a "dealer" and as such no tax could be levied on the amount received by it from the sale of its publications.