- (1.) THE applicant in this case is the State of Rajasthan while the opposite party is the Assistant Commercial Superintendent, Lost Property Office, Northern Railway, Bikaner. THE Assessing Authority held the opposite party liable to pay tax on the sales of lost property by him. THE Deputy Commissioner, Sales-Tax set aside the order of the Assessing Authority, holding that no sales-tax was payable by the opposite party. We have to decide whether the opposite party is a 'dealer' within the meaning of sec. 2 (f) of the Rajasthan Sales-Tax Act, 1955, in regard to his sales of lost property.
(2.) IN the first instance the learned counsel for the opposite party has explained what type of goods are disposed of by his office. He has averred that these are goods transported by the railway for which the transportation and other charges are not paid on demand, by the persons on whose behalf they are transported; or goods which have come into the possession of the railway for carriage or otherwise and are not claimed by the owner or other persons entitled thereto. Under the powers vesting in the Railway Administration vide secs. 55 and 56 of the INdian Railways Act, these goods are sold and the proceeds, after deduction of the charges due to the railway, are payable to the rightful claimant. This has not been contested by the learned Government Advocate. From this the learned counsel for the opposite party has gone on to argue that in so far as the sale of lost property is concerned he is not in the position of a 'dealer' within the meaning of sec. 2 (f) of the Rajasthan Sales-Tax Act which at the relevant time stood as follows - "dealer" means any person who carries on the business of selling or supplying or supplying goods in the State whether on commission or for remuneration or otherwise and includes 'the State Government in respect of any such business', a Hindu undivided family, and also a society, club or any other association which sells or supplies goods to its members. " The learned counsel for the opposite party has contended that the above definition of 'dealer' excludes by implication the Central Government since the State Government has been specifically included within the definition while the Central Government has not been so included. His second contention is that the disposal of lost property by the Railway Administration can by no means be described as the business of buying or selling or supplying goods. We find force in both these contentions. We note that sec. 2 (f) of the Rajasthan Sales-Tax Act has been subsequently amended so as to include the Central Government within the definition of 'dealer'. The present definition of 'dealer' is as follows - "dealer" means any person who carries on the business of buying or selling or supplying goods in the State, whether on commission or for remuneration or otherwise, and includes the Central Government, a State Government or any of their Departments in respect of any such business, a Hindu undivided family and a society, club or any other association which buys goods from or sells or supplies goods to, its members. " By juxtaposing the earlier and the later versions of sec. 2 (f) of the Sales-Tax Act, a clear inference can be drawn that at the time relevant for the present case the expression 'dealer' did not include the Central Government. The Railways are a department of the Central Government and as such, no sales tax could be levied. Now we come to the second contention that the disposal of lost property by the Railway Administration is not a business of buying or selling or supplying goods. The learned counsel for the opposite party has cited three rulings in this matter. The first is AIR 1954 Madras 1130. In this decision their Lordships have observed that the expression 'business' must be understood in a restricted and commercial sense that the activity is with a view to earn profit. Judged by this test the disposal of lost property by the applicant is not a business. The unclaimed property coming into the possession of the Railway Administration has to be disposed of anyhow and the sale proceeds are legally payable to the person entitled thereto whenever a claim is made. The disposal of lost or unclaimed property in the present case cannot be described as an activity undertaken specifically with a view to earning profit. In fact it is an accidental accrual. The next ruling is AIR 1957 Assam 179. Their Lordships have laid down in this case that the words 'carrying on business' connote a continuous trade or occupation involving time and labour as also some investments which may be regarded as an independent trade or occupation by itself capable of being sold or transferred as such. The disposal of lost or unclaimed property by the Railway Administration does not constitute a business in this sense. The next ruling relied upon by the learned counsel for the opposite party is AIR 1958 Andhra Pradesh 332. The principle laid down by Their Lordships here is that the expression 'dealer' underlines the fact that the transaction must be of a commercial nature and further that a business is a trade or profession at which one works regularly for profit. The transactions in the case that we have in hand do not constitute a business in the sense in which Their Lordships have construed this expression with reference to the definition of a "dealer. " We have, therefore, no hesitation in holding that the opposite party is not a dealer liable to pay tax under the Rajasthan Sales-Tax Act. The result is that this application for revision stands rejected. .;