The judgment of the Court was delivered by

KANIA, J. - This is a reference under section 61(1) of the Bombay Sales Tax Act, 1959 (hereinafter referred to as "the said Act").

The facts giving rise to this reference are as follows : One Cutchi Dasha Oswal Mahajan is a public charitable trust registered under the Bombay Public Trust Act, 1950. This trust conducts an institution known as Udyog Griha, whose affairs were managed by the respondent, which is a committee of the said trust. This committee was started mainly with the object of providing employment to the poor and distressed women of the said community, who have no source of income. In order to provide maintenance to such women, the respondent employed them for preparing eatables. These articles were sold and the money realised was given to the destitute women employed by the respondent. From the judgment of the Tribunal it appears that the surplus amount out of the said realisations was utilised by the respondent for extending its activities so that more destitute women of the community could get relief. It is common ground that the eatables prepared in the Udyog Griha were sold like any other articles in the market and not necessarily at a concessional rate or at the cost price. It has been found by the Tribunal that the main object of the trust was to ameliorate the living conditions of the poor and destitute women of the said community, viz., cutchi dasha oswal caste. The respondent made an application on 10th October, 1968, under section 52 of the said Act requesting the Commissioner of Sales Tax to determine whether the Gnati Mahajan was a dealer and whether the supply of the goods by the Udyog Griha amounted to a sale. The Deputy Commissioner of Sales Tax came to the conclusion that the activity of preparing eatables was with a view to earn profit and the purpose for which the profit was utilised was not relevant. He held that as the respondent has not sold the eatables at a subsidised rate but according to the trade practice and profits and been made continuously for the previous four years, the respondent was a dealer, and as the turnover of purchases and sales had exceeded the prescribed limits, the respondent was liable for registration under the said Act. The respondent filed an appeal against this decision before the Sales Tax Tribunal being Appeal No. 14 of 1969. The Tribunal took the view that as the main object of the said trust was to ameliorate the living conditions of the poor and destitute women of the community and as the said trust was registered as a charitable trust for this purpose, the activity which the trust had undertaken to do through the respondent could not be described as a commercial activity of sale. The Tribunal accepted the conclusion of the Deputy Commissioner of Sales Tax that there was surplus resulting from the activity of sale of the eatables and also that the eatables prepared were sold in the market like you other articles and not at any concessional rate. The Tribunal, however, held that the surplus which resulted to the respondent from these sales could not be termed as profits in the commercial sense, because that surplus was utilised to extend similar activities so that the living conditions of a larger number of poor and destitute women of the community could be ameliorated. The Tribunal further held that it was not the intention of the charitable institution to carry on the business of selling edible articles and the profits made as aforesaid were incidental. The Tribunal set aside the order of the Deputy Commissioner of Sales Tax and held that the respondent was not liable to be registered as a dealer under the said Act. This reference has been made at the instance of the Commissioner of Sales Tax against this decision of the Tribunal. The question referred to us for our consideration is as follows :

"Whether, on the facts and in the circumstances of the case, the Tribunal was correct in law in coming to the conc