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CASE NO.:

Appeal (civil) 9445 of 1996

PETITIONER:

COMMISSIONER OF SALES TAX

Vs.

RESPONDENT:

SAI PUBLICATION FUND

DATE OF JUDGMENT: 22/03/2002

BENCH:

Shivaraj V. Patil & Bisheshwar Prasad Singh

JUDGMENT:

With

Civil Appeal No. 1716 of 1999

J U D G M E N T

Shivaraj V. Patil,J.

CIVIL APPEAL NO. 9445 OF 1996

In the light of the contentions raised and submissions made

on behalf of the parties, the issue that arises for consideration

and decision in this appeal is whether the Trust - Sai Publication

Fund, which has been set up by some devotees of Saibaba of Shridi

for spreading his message, can be held to be a "dealer" in

respect of sale of books, booklets, pamphlets, photos, stickers

and other publications containing message of Saibaba and the

turnover of such publication can be assessed to sales tax under

the Bombay Sales Tax Act, 1959 (for short ‘the Act’).

The relevant and material facts, leading to filing of this

appeal in brief, are that the assessee (the respondent herein) is

a Trust created by four devotees of Saibaba of Shridi under a

trust deed dated 6.8.1984. The object of the Trust is to spread

message of Saibaba of Shridi. In furtherance of and to accomplish

the said object, the assessee publishes books, pamphlets and other

literature containing the message of Saibaba under the aegis of

"Sai Publications" which are available to the devotees of Saibaba

on nominal charge to meet the cost. The sale proceeds of such

publication goes to the Trust and forms part of the property of

the Trust, which can be utilized only for advancement of the

objects of the Trust. There is a specific provision in the trust

deed that in the event of failure of the Trust to carry on its

aims and objects, the remaining fund in its hands would be handed

over to Sansthanam of Shridi.

In order to avoid any controversy relating to leviability of

sales tax on the amount received on sale of such publications, an

application was made by the Trust under Section 52(1)(a) of the

Act seeking determination of the questions whether the Trust could

be said to be carrying on "business’ as defined in Section 2(5A)

of the Act and whether it could be considered as a "dealer"

within the meaning of Section 2(11) of the Act. The Deputy

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Commissioner of Sales Tax by his order dated 28.9.1989 held that

the activity of publication and sale of books etc. amounted to

business falling within the ambit of Section 2(5A) and the Trust

was a "dealer" coming within the meaning of Section 2(11) of the

Act. Consequently, he held that the Trust was liable to pay sales

tax on the value of publications sold by it. What weighed with

the Deputy Commissioner in passing the said order was the

amendment of the definition of "business" in Section 2(5A) of the

Act by the Maharashtra Tax Laws (Levy, Amendment & Repeal) Act,

1989 with retrospective effect from 16.8.1985 to provide that even

without profit motive, it can still be "business".

In the appeal filed before the Maharashtra Sales Tax

Tribunal against the said order of the Deputy Commissioner, it was

contended on behalf of the Trust that it was not a "dealer"

within the meaning of Section 2(11) of the Act as it was not

engaged in any activity which amounted to "business" in view of

the object and activities of the Trust. The Revenue supported the

order of the Deputy Commissioner relying on the amendment of the

definition of "business" as a result of which profit motive was

immaterial. The Tribunal, after due consideration of rival

submissions looking to the object of the Trust and the nature of

its activities, concluded that the assessee could not be held to

be a "dealer" and as such no tax could be levied on the amount

received by it from the sale of its publications.

At the instance of the Revenue, reference was made under

Section 61(1) of the Act b