B. R. ARORA, J. - (1.) IN these three revision petitions, preferred under section 15 (1) of the Rajasthan Sales Tax Act, 1954, against the order dated December 4, 1987, passed by the Rajasthan Sales Tax Tribunal, Ajmer, the question that arises for determination is : whether the sales effected during the assessment years 1978-79, 1979-80 and 1980-81 by the assessee, M/s. Hindustan Zinc Limited, Udaipur, in respect of tender forms would be exigible for sales tax ? The petitioner-assessee is a registered dealer under the Rajasthan Sales Tax Act and deals in non-ferrous items. It is, also, a manufacturer of these items. For the purpose of purchase of different items, the assessee used to give advertisements in the papers with the statement that desirous suppliers may submit their tenders. The tender forms were given by the assessee-petitioner at the cost ranging between Rs. 25 to Rs. 1000 to the desirous suppliers. Such cost of the tender forms was received by the assessee during the relevant years, i. e. , for the assessment years 1978-79, amounting to Rs. 1,179, in 1979-80 amounting to Rs. 39,166 and in 1980-81 amounting to Rs. 75,910. The assessee-petitioner was assessed for these assessment years and in addition to other tax liabilities created and penalty imposed, the assessee was held liable for the payment of sales tax on the sales of the tender forms. The assessee preferred an appeal before the Deputy Commissioner (Appeals), Udaipur, against the complete assessment, challenging the order passed by the Commercial Taxes Officer on various grounds including the ground that no tax is payable on the sale of tender forms as it is not the business activity of the assessee-petitioner. The appeal filed by the assessee was partly allowed by the Deputy Commissioner (Appeals ). Though the appeal was allowed on other points, but so far as the imposition of the tax on the sale of tender forms was concerned, that was maintained. Dissatisfied with that order, the assessee preferred an appeal before the Rajasthan Sales Tax Tribunal, Ajmer. The Tribunal, by its order dated December 4, 1987, decided all the three appeals filed by the assessee-petitioner with respect to the assessment years 1978-79, 1979-80 and 1980-81. The appeal filed by the assessee was partly allowed by the Tribunal, but so far as the question of imposition of tax on the sale of tender forms is concerned, that was maintained by the Tribunal. It is against this order that the assessee-petitioner has preferred these three revision petitions. Though a number of grounds have been raised in the revision petitions, but the counsel for the petitioner has challenged only the charging of sales tax and penalty with respect to the sale of the tender forms. The learned counsel for the petitioner did not challenge the order passed by the learned Tribunal on the other grounds.
(2.) IT has been contended by the learned counsel for the petitioner that the petitioner is not carrying on the business of selling the tender forms and the tender documents containing the forms of specification are not marketable goods and there is no profit element in the sale of these forms and as such the supply of such tender forms on price cannot be said to be "sale of goods" and, therefore, no tax can be levied on the sale of the tender forms. In support of his contention, the learned counsel for the petitioner has placed reliance on the judgments reported in Madhya Pradesh Electricity Board v. Commissioner of Sales Tax [1968] 21 STC 202 (MP), Commissioner of Sales Tax v. Madhya Pradesh Electricity Board [1970] 25 STC 188 (SC), Board of Trustees of the Visakhapatnam Port Trust v. Commercial Tax Officer [1979] 43 STC 36 (AP ). IT was further contended by the learned counsel for the petitioner that giving of tender forms for price cannot be said to be incidental to the main business of the petitioner. In support of this, he has placed reliance on the judgment of the Honourable Supreme Court reported in Royal Talkies v. Employees' State Insurance Corporation AIR 1978 SC 1478 and State of Tamil Nadu v. Binny Ltd. [1982] 49 STC 17; AIR 1980 SC 2038. The learned counsel for the department, on the other hand, has supported the order passed by the learned Tribunal and has submitted that the sale of the tender forms amounts to the business of the petitioner-assessee and the learned Tribunal has rightly opined that the transaction is exigible to sales tax. In support of its case, the learned counsel for the department has placed reliance over the judgment of the Supreme Court rendered in Anraj v. Government of Tamil Nadu and Dipak Dhar v. State of West Bengal [1986] 61 STC 165; AIR 1986 SC 63. I would now advert to the case law, on which reliance has been placed by both the parties. In Madhya Pradesh Electricity Board v. Commissioner of Sales Tax [1968] 21 STC 202 (MP), the point for consideration was : whether the Madhya Pradesh Electricity Board, which was supplying the electricity and steam to the consumers is a dealer under the Madhya Pradesh General Sales Tax Act, 1958 and whether the sale of coal-ash and specification and tender forms are liable to sales tax. The Madhya Pradesh High Court, after considering the law on the point came to the conclusion that the Madhya Pradesh Electricity Board was not a dealer as per the provisions of the Madhya Pradesh General Sales Tax Act as the activities of the Board was only with respect to generation, distribution, sale and supply of electrical energy. The learned Judges of the Madhya Pradesh High Court, in this case, also, came to the conclusion that "the specification and tender forms are given by the assessee at a certain price to the persons who desire to give tenders for certain contracts and it cannot be held that by supplying the tender forms to the persons concerned, the assessee became a dealer in that transaction. The point is clear and it does not require elaboration". While dealing with this case, the learned Judges of the Madhya Pradesh High Court did not consider and deal with the law on the point and the learned Judge, also, did not take into consideration the unamended definition of the word "business", even which was in existence at that time. This case, thus, does not help the case of the petitioner because after the decision of the case the definition of the word "business" under the Rajasthan Sales Tax Act has been amended which is at variance with the definition of the word "business" at the relevant time under the M. P. General Sales Tax Act. Commissioner of Sales Tax v. Madhya Pradesh Electricity Board [1970] 25 STC 188 (SC) was an appeal, preferred against the judgment of the Madhya Pradesh High Court in [1968] 21 STC 202 (Madhya Pradesh Electricity Board v. Commissioner of Sales Tax ). In that case, the Honourable Supreme Court partly reversed the judgment passed by the Madhya Pradesh High Court on other points, but so far as the charging of sales tax on the sale of tender forms is concerned, that was, however, maintained. It may, however, be mentioned that before the Supreme Court also, the provisions of the Sales Tax Act, with respect to the definition of the term "business", were under consideration in the unamended form and, therefore, this case, also, does not help the petitioner-assessee. In Board of Trustees of the Visakhapatnam Port Trust v. Commercial Tax Officer [1979] 43 STC 36, the question for consideration before the Andhra Pradesh High Court was : whether the port trust of Visakhapatnam was a "dealer" under the Andhra Pradesh General Sales Tax Act, 1957 or not ? The learned Judges of the Andhra Pradesh High Court came to the conclusion that as the activities carried on by the Board of Trustees of Visakhapatnam are only of (a) supply of water of visiting vessels; (b) bunkering of visiting vessels with liquid fuel; (c) offering of tender documents for a consideration to prospective contractors; (d) supply of water and issue of stores to its own engineers and staff; and (e) disposal of unserviceable or surplus materials by auction or by inviting tenders; therefore, the Andhra Pradesh High Court came to the conclusion that the petitioner was not a dealer within the meaning of section 2 (e) of the Act in as much as none of the activities of the petitioner amounted to carrying on business either under its constitution or as defined in section 2 (1) (bbb) of the Andhra Pradesh General Sales Tax Act. In Royal Talkies v. Employees' State Insurance Corporation AIR 1978 SC 1478, the question that arose for consideration before the Supreme Court was : whether keeping a cycle stand in a cinema theatre by the contractor is incidental or connected with the business of the cinema theatre or not ? The Supreme Court observed that a thing is incidental to the another if it appertains to something else as primary and the operation of keeping a cycle stand is incidental or adjuncts to the primary purpose of the theatre within the meaning of clause (ii) of section 2 (9 ). In this case, it was further observed that a car parking or cycle stand, surely, has a connection with the cinema theatre and even further the venture.
(3.) IN State of Tamil Nadu v. Binny Ltd. [1982] 49 STC 17 (SC); AIR 1980 SC 2038, the same principles were reiterated by the Supreme Court. The point for consideration in that case was whether a stone run by owner of textile undertaking for sale of provisions to workmen employed in the factory is incidental to the business of the textile, and whether the sales effected in store are liable to tax. It was held in that case that a store run by the owner of the textile undertaking for sale of provisions to the workmen/employees in the factory can be regarded as incidental to the business of manufacture of textiles and the activity of selling provisions to workmen in the store is, therefore, incidental to the business of manufacture of textiles falling within the definition of "business". In H. Anraj v. Government of Tamil Nadu [1986] 61 STC 165 (SC); AIR 1986 SC 63, the point for consideration before the Supreme Court was : whether the sale of lottery tickets is a "sale" under the Tamil Nadu General Sales Tax Act, 1959 or not and whether the lottery tickets are liable to sales tax, and it was held : " In the light of the aforesaid discussion my conclusions are that lottery tickets to the extent that they comprise the entitlement to participate in the draw are 'goods' properly so-called, squarely falling within definition of that expression as given in the Tamil Nadu Act, 1959 and the Bengal Act, 1941, that to that extent they are not actionable claims and that in every sale thereof a transfer of property in the goods is involved. " Now, in view of the law laid down by the Supreme Court and the various High Courts on the point, it has to be seen : whether the sale of tender forms under the Rajasthan Sales Tax Act is exigible to sales tax. ;