SATISH CHANDRA,J. - (1.) ALL these writ petitions have been filed by the petitioner-assessee i.e. M/s. Mahomed Bagh Club Ltd. Lucknow (hereinafter referred to as the Club) which was incorporated under the Indian Com­panies Act as limited Company. It never filed the Trade Tax Returns. First time, the notice was issued on 30.03.1998 and also on other dates under Section 13(1) of the U.P. Trade Tax Act 1948 (hereinafter referred to as the Act) requiring the petitioner to produce the books of accounts for the relevant assessment years. Being aggrieved, the petitioner filed the present writ petitions for the assessment years mentioned above.
(2.) SRI Pradeep Agarwal learned counsel for the petitioner submits that the Club was es­tablished as an 'Army Club' in the year 1931. According to him, the Trade Tax Act is not applicable in the petitioner's case as the petitioner-assessee Club is being run exclusively for the benefit of its members. The members enjoy the foods and amenities available in the club. There is no sale to self. The object of the club is based on the principle of mutuality and not involving in any trade activity. For this purpose he read out Section 2(h)(v)(vi) of the Trade Tax Act, which follows as under: "Section 2(h)(v): the supply of goods by' any unincorporated association or body of persons to a member thereof for cash, deferred payment or other valuable consideration ; and (vi): the supply, by way of or as part of any. service or in any other manner whatsoever, of goods, being food or any other article for hu­man consumption or any drink (whether or not intoxicating) where such supply or service is for case or deferred payment or other valu-. able consideration." He submits that there is no transfer of the property in the goods because there can­not be a sale to self. According to him, section 2(h) is not applicable in the petitioner's case as there is no transfer of the goods. There must be at least two parties for a 'transfer'. In the instant cases, members are trustees of the Club and they consumed food stuff etc. No sale can be made out to sell. He further submits that the Section 2(h) (vi) is related to the sale, sup­ply and service to the customer. In the instant cases, members of the club are not the cus­tomers and this provision is strictly applicable to the supply, consumption sale of the food items in a Restaurant/Hotel. The petitioner- as-sessee is not a restaurant. No outsider can come and enjoy the said facility. For this purpose, he heavily relied on the ratio laid down in the case of Harbour Division II, Madras v. Young Men's Indian Association Madras and others 1970 (26) STC 241 SC where it was observed that there is no 'transfer of property' from one to another, there is no sale which would be exigible to tax under the Act. If a members' club even though a distinct legal entity acts only as an agent for its members' in the matter of the supply of various preparations and ar­ticles to them no sale would be involved as the element of transfer would be completely absent.
(3.) LEARNED counsel for the petitioner read out the entire judgment and stated that the objects of the petitioner as disclosed in the memorandum of association are mainly to pro­mote and facilitate social intercourse, discus­sion among its members etc. It maintains an establishment for preparing and supplying re­freshments to its members at such prices fixed as are fixed by the Committee. On specific quarry from the Bench, he admits that a Mem­ber is allowed to bring guest with him but if any article of food is consumed by the guest, it is the member who has to pay for the same.;