A club or association which sells goods to its members is a dealer within the meaning of the Bengal Finance (Sales Tax) Act, 1941, and the supply of refreshments by such club or association to its members at a fixed tariff constitutes sale.

P. C. BANERJI (Technical Member). - This is an application under article 226 of the Constitution of India filed in the High Court at Calcutta by the Automobile Association of Eastern India. In terms of section 15 of the West Bengal Taxation Tribunal Act, 1987, it was transferred to this Tribunal for disposal.

2. In this application three notices dated 16th February, 1988, under section 11 and section 14(1) of the Bengal Finance (Sales Tax) Act, 1941 (hereinafter called "the Act"), issued by the Commercial Tax Officer, Bhawanipore Charge, in respect of separate yearwise assessments for three years from 1st January, 1982 to 31st December, 1984, have been challenged.

3. The case of the applicant may be briefly stated as follows : The Automobile Association of Eastern India is a company incorporated under the Indian Companies Act, 1913, as a non-profit earning institution. The said company is a club formed for various objects including promotion of the interests of motorists and providing means of social intercourse between them. The main objects of the company are to maintain and conduct a club for accommodation of its members and their friends, to provide a clubhouse and other conveniences and generally to afford to members and their friends all the usual privileges, advantages, convenience and accommodation of a club and to consider and discuss all questions affecting the interests of motorists and the alteration or administration of the law and all police and municipal rules and regulations relating to or anyway affecting them, to form and maintain a reading room and library of literature and to do all things that are incidental to or conducive to the attainment of the above objects or any of them. The income and property of the company are applied solely towards promotion of the said objects and, according to the memorandum of association, no proportion thereof shall be paid or transferred directly or indirectly by way of dividend, bonus or otherwise by way of profit to members.

4. To achieve these objects the association provides all facilities and service to the car owners, who are its members. The association maintains and conducts a club for accommodation of its members and also maintains an establishment for preparing and supplying refreshment to its members and their guests. The stores and consumable materials necessary for the aforesaid purpose are purchased by the club from the market and the preparation of food and refreshment is made within the premises of the club at the direction of a committee formed for the purpose. The food and/or refreshment prepared in its clubhouse are supplied to the members at such prices as are fixed by the said committee. The members are allowed to bring their guests with them but if any food or refreshment is consumed by the guests, then it is the member, who has to pay for the same along with the guest charge.

5. It is the case of the applicant that the objects for which the club is established would indicate that it is not carrying on any trade and/or business. In conducting the clubhouse the preparations and/or refreshments are supplied to the members without any profit-motive. The club does not carry on any business of supplying such preparations or refreshments to the public and accept any kind of invitation for preparation and supply of such food or refreshment outside the clubhouse. The food or the refreshment prepared in its kitchen cannot be said to be manufactured for trading purposes. It is a members' club, which only provides service of refreshments to its members sitting in the clubhouse. While supplying goods to its members it is not selling them because the members themselves are the owners of the goods and the transfer from the owner to themselves does not constitute sale of those goods to its members by way of business. In other words, the applicant is not carrying on business of selling goods but is only supplying various preparations or refreshments to its pr