The judgment of the court was delivered by

KANIA, J. - This is a reference made at the instance of the Commissioner of Sales Tax 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 can be briefly stated : The respondent carries on business in old furniture. He purchases old or second-hand articles of furniture and after polishing and colouring the same, if necessary, sells them. In the assessment for the period from 1st January, 1960, to 31st December, 1962, the respondent was assessed as a manufacturer by the Sales Tax Officer concerned. The respondent preferred an appeal, which was dismissed by the Assistant Commissioner of Sales Tax. The respondent then preferred a second appeal to the Sales Tax Tribunal, where he succeeded. The Tribunal found that what the respondent used to purchase were items of second-hand furniture such as tables, cots and chairs and what he used to sell were also the same articles. It was urged by the department before the Tribunal that the respondent was carrying on the activity of finishing the second-hand furniture purchased by him. This contention was reject