BERI, J. - (1.) ON the direction of this court dated 27th August, 1968, the Board of Revenue for Rajasthan has referred the following question for our answer under sec. 15 (2) of the Rajasthan Sales Tax Act (hereinafter called 'the Act') : - "whether on the facts and circumstances of this case and on the true construction of the provisions of the Rajasthan Sales Tax Act, 1954, the petitioner's firm is covered by the definition of a "dealer" under sec. 2 (f) of the Rajastnan Sales Tax Act, 1954?"
(2.) MESSRS, Agrawal Engineering & Construction Company, Jaipur Road, Ajmer is a partnership Act. It was asked by the Assistant Commercial Taxes Officer, 'b' Ward, Ajmer to get itself registered as a dealer under sec. 6 of the Act but the petitioner contested the position saying that it was not covered by the definition of the word 'dealer' as defined in sec. 2 (f) and therefore, it was not liable to get itself registered. The Assistant Commercial Taxes Officer held that the petitioner was a dealer and should have registered itself as such under sec. 6 of the Act and imposed a fine of Rs. 50/ -. A revision was filed by the petitioner before the Board of Revenue for Rajasthan against the said order of the Assistant Commercial Taxes Officer and the Board dismissed the petition on the ground that the question raised by the petitioner stood decided by the judgment of the Supreme Court in the State of Andhra Pradesh vs. H. Abdul Bakshi & Bros. (1 ). The petitioner asked the Board to refer the matter under sec. 15 (2) of the Act but the Board expressed the opinion that the matter was fully covered by the authority of the Supreme Court and no reference was necessary. It is in these circumstances that the petitioner moved this court and by its order dated 27th of August, 1968 the Board was directed to refer the question aforesaid. Mr. C. L. Agrawal learned counsel for the petitioner argued that on a proper interpretation of the term 'dealer' as defined under sec. 2 (f) of the Act means any person who carries on the business of buying or selling or supplying or distributing goods. The petitioner is a building contractor who did not carry on the business of buying material as such and therefore does not fall within the scope of sec. 2 (f) and therefore, it is not liable under sec. 5 A of the Act for any purchase tax. He placed reliance on K. S. Films vs. The State of Maharashtra (2), The State of Gujarat vs. Vivekanand Mills (3), G. P. Timber vs. Commissioner of Sales Tax (4), Versova Koli Sahakari Vahatuk Sangh' Ltd. , vs. The State of Maharashtra (5), Loyal Textile Mills Ltd. , vs. The State of Madras (6 ). Mr. Shrimal Additional Government Advocate appearing for the Department urged that the question before us is clearly covered by the decision of their Lordships of the Supreme Court in Ganesh Prasad Dixit vs. the Commissioner of Sales Tax Madhya Pradesh (7) and no useful purpose would be served by refering to any other decision except the decision of the Madhya Pradesh High Court from which the matter went up to the Supreme Court which is reported as Ganesh Prasad Dixit vs. Commissioner of Sales Tax, Madhya Pradesh (8 ). A close examination of Ganesh Prasad Dixit's case shows that the learned counsel for the Department is right when he says that the question which calls for answer before us is directly covered by that case. It will be profitable to recall the salient features of similarity between the case before us and the one decided by the Supreme Court. Let us glean the facts of Ganesh Prasad's case from the decision of the High Court (8 ). The assessee in that case was a building contractor and registered as a dealer under the Madhya Pradesh Genera] Sales Tax Act, 1958. In the course of his business he was required to purchase certain goods and materials for the execution of contract works undertaken by him. As he failed to submit a return for the assessment period between the 1st July, 1961 to the 30th September, 1961, a notice under sec. 18 (5) of the Madhya Pradesh Act was issued to him asking him to appear with his account books. The Sales Tax Officer found that the assessee's turnover for the period in question was nil. He, however, came to the conclusion that during the relevant period the assessee purchased building materials from unregistered dealers of the value of Rs. 40,000/- and that on these purchases he was liable to pay purchase tax under sec. 7 of the Madhya Pradesh Act. Accordingly an assessment of purchase on Rs. 40,000/-was made by the Sales Tax Officer at the prescribed rate. The assessee's appeal before the Commissioner of Sales Tax and the Sales Tax Tribunal namely, the Board of Revenue, did not meet with success. One of the question that arose for consideration in that case was whether in the facts and in the circumstances of the case the applicant was a 'dealer' during the period of assessment under the Madhya Pradesh Act and the imposition of purchase tax on him under sec. 7 of the said Act was in order. The learned Judges of the Madhya Pradesh High Court found on the basis of a comparative study of sec. 2 (e) of the Hyderabad General Sales Tax Act with that of the Madhya Pradesh General Tax Act that they were nearly similar and therefore the High Court observed in this case (3) that the assessee was, a dealer'. The learned Judges of Madhya Pradesh High Court observe as follows : ". . . . . . . . . . . . Mere buying for personal consumption i. e. without a profit motive, will not make a person dealer within the meaning of the Act, but a person who consumes a commodity bought by him in the course of his trade, or use in manufacturing another commodity for sale, would be regarded as a dealer. " The learned Judges of the High Court accordingly answered the question in the affirmative, holding that the assessee was a dealer. The matter was taken up to the Supreme Court and their Lordships referred to L. M. S. Sadak Thamby & Co. vs. the State of Madras (9) in which a similar question was decided by the High Court of Madras. In that case the assessee had purchased tanning bark and had consumed it for tanning raw hides. The Madras High Court was of the opinion that the buying of the goods must be in the course of business which means that the activity should be associated with a profit making motive. Their Lordships further referred to the facts that where no sales tax was payable under sec. 6 on the sale price of the goods, purchase tax was payable by the dealer, on the purchase price of the goods (raw material) purchased from unregistered dealers and consumed in the manufacture of other goods. The Supreme Court affirmed the decision of Madhya Pradesh High Court in Ganesh Prasad Dixit vs. Commissioner of Sales Tax, Madhya Pradesh (8), and found the building contractor 'a dealer'.
(3.) WE have already noticed that the assessee in Ganesh Prasad Dixit's case and the one before us are both building contractors. Let us now examine to what extent the provisions of law relevant for the determination of the question are similar. The material portion of sec. 2 (d) defining the term 'dealer' in the Madhya Pradesh General Sales Tax! Act, 1958 and the Rajasthan Sales Tax Act, 1954, sec. 2 (f) are placed below in juxtaposition : - "madhya Pradesh 2 (d) "dealer" means any person person who carries on the business of buying, selling, selling, supplying or distributing goods, directly or otherwise, whether for cash, or for deferred payment, or for commission, remuneration or other valuable consideration and includes. " "rajasthan 2 (f) "dealer" means any who carries on the business of buying, supplying, or distributing goods, directly or otherwise, whether for cash, or for deferred payment, or for commission, remuneration or other valuable consideration and includes. " It would be sufficient to say that the material part of the definition is not only similar but exactly identical and the portions that we have excluded from quotation, in the interest of brevity, are also similar. Sec. 7 of the Madhya Pradesh Act and sec. 5-A of the Rajasthan Act are also similar. They are quoted below for the purpose of reference : - "sec. 7 - Levy of Purchase Tax - Every dealer who in the course of his business purchases any taxable goods (from a registered dealer) in circumstances in which no tax under sec. 6 is payable on the sale price of such goods (or from any other person) and either consumes such goods in the manufacture of other goods for sale or otherwise or disposes of such goods in any manner other than by way of sale in the State or despatches them to a place outside the State except as a direct result of sale or purchase in the course of inter-State trade or commerce shall be liable to pay tax on the purchase price of such goods at the same rate at which it would have been leviable on the sale price of such goods under sec. 6 : Sec. 5-A - Levy of purchase tax - Every dealer who in the course of his business purchases (any) goods other than exempted goods (xxv) in circumstances in which no tax (under secs. 5, and 5e is payable on the sale price or such goods and either consumes such goods in the manufacture of other goods for sale or otherwise, or disposes of such goods in any manner other than by way of sale in the State, of (if such goods are the specified goods) despatches them to a place outside the State or if such goods are goods other than the specified goods, despatches them to a place outside the State except as a direct result of sale or purchase in the course of inter-State trade or commerce shall be liable to pay tax on " the purchase price of such goods at the same rate at which it would have been leviable on the sale price of such goods (under secs. 5 & 5e)" ;