(Writ petitions 7694, 7939 to 7943 and 12679 of 1999, and 2737 of 2000 filed under Article 226 of the Constitution of India for the issue of writ of certiorarified mandamus to call for the records of the Tamil Nadu Taxation Special Tribunal, Chennai in T.Ps. No.1672, 2462, 2 463 of 1997, and O.Ps. No.382, 518, 703, 704 and 2033 of 1998, quash the common order dated 18.12.1998 made therein; to call for the records in O.P.No.853 of 1999, quash the order dated 21.07.1999, and to call for the records in O.P.No.1469 of 1999, quash the order dated 16.1 1.1999 and further direct the respondents to declare that the petitioners clubs being incorporated clubs are dealers and the supply of refreshments to their members cannot be treated as a sale under sub clause (v) of Section 2(n) of the Tamil Nadu General Sales Tax Act, 195 9. Writ Petition No.570 of 2000 filed under Article 226 of the Constitution of India for the issue of writ of certiorarified mandamus to call for the records of the Tamil Nadu Taxation Special Tribunal, Chennai dated 20.12.1999 in O.P.1594 of 1999 confirming the notice having reference No.RC.54/99/A5 dated 24.06.1999 along with the notice dated 30.09.1999 issued by the second respondent and quash the same and consequently forbear the respondents from in any way calling upon the petitioner to register itself as a dealer under the provisions of the Tamil Nadu General Sales Tax Act, 1959 or paying any amount as sales tax on the sale of food and drinks to the members of the petitioner.)

R. Jayasimha Babu, J.

The Madras General Sales Tax Act, 1939 is, perhaps, the first Indian statute on the subject of general sales tax. As noted by Hidayathullah, J. in his dissenting judgment in the case of New India Sugar Mills vs. C.T.O., AIR 1963 SC 1207, though by the time the Government of India Act 1935 was passed some 30 countries had imposed this tax in different forms, almost all of those in the 20 th century, India was not one of the countries which had imposed such a tax.

2. In the Madras General Sales Tax, 1939 (Act 9 of 1939) `dealer' was defined in Section 2 as meaning -- any person who carries on the business of buying or selling goods'. Explanation (1) to the definition read thus:

"A Co-operative society, a club, a firm, or any association which sells goods to it's members is a dealer within the meaning of this clause."

3. From 1939 onwards the clubs were paying sales tax on the supply of refreshments to their members and continued to do so till India became a Republic and thereafter till about 1951. The Cosmopolitan Club, Madras filed a writ petition in this Court in or about 1951, to forbear the State from levying and collecting sales-tax on the value of refreshments supplied to it's members. That was the case of Cosmopolitan Club vs. Deputy Commercial Tax Officer, (1952) 3 STC 77. Mack, J., who heard the matter, after noticing that the club had been paying sales-tax since 1939 which grew from a comparatively insignificant levy of a few rupees a year, to a considerable sum and that not only that club but also the other clubs had been paying tax without demur or objections, considered the question as to whether the supply of refreshments by the petitioning club to it's members charging a fixed rate, constitutes in law `sale'.

4. The learned Judge found that the Articles and Memorandum of Association of the Cosmopolitan Club was based on that of the Eccentric Club, London and that it was social or members club not conducted for gain or profit. The Court took judicial notice of `necessity to sustain and refresh members of the club indulging in generally wholesome social and recreative activities, by a supply of refreshments, both liquid and solid. The Court referred to English case of Inland Revenue Commissioner vs. Westleigh Estates Company Ltd., (1924) 1 K.B. 390 wherein it was held that Members Club not being a Proprietary Club, the club was not carrying on any `undertaking of a similar character to that of a