BOMBAY ELECTRIC SUPPLY AND TRANSPORT BEST UNDERTAKING Vs. BOMBAY ELECTRIC SUPPLY AND TRANSPORT BEST UNDERTAKING

JUDGEMENT

(1.) THIS reference arises out of the common judgment and order dated July 30, 2004, passed by the Maharashtra Sales Tax Tribunal, Mumbai, in R. A. No. 37 of 2004 filed by M/s. Bombay Electric Supply & Transport (BEST) undertaking (hereinafter referred to as "the assessee") and R. A. No. 47 of 2004 filed by the Commissioner of Sales Tax (hereinafter referred to as "the CST" ). By the said judgment and order, the Tribunal has referred the following two questions for decision of this Court under section 61 of the Bombay Sales Tax Act, 1959, namely : 1. At the instance of the assessee in R. A. No. 37 of 2004. Whether on the facts and circumstances of the case and upon true and correct interpretation of the provisions of section 22 (5a) of the Bombay Sales Tax Act, 1959 the Tribunal was justified in holding that the appellant was liable to pay tax on the impugned sales of discarded materials connected with the appellant's transport activity, when in fact, qua this transport activity, the appellant is admittedly not a dealer as per section 2 (11) read with section 2 (5a) of the Bombay Sales Tax Act, 1959 ? 2. At the instance of the CST in R. A. No. 47 of 2004.

(2.) WHETHER on the facts and circumstances of the case and on true and correct interpretation of section 55 (6) of the Bombay Sales Tax Act, 1959 the Tribunal was justified in holding that in an appeal under section 55 (6) (c), the point involved in the order appealed against but not agitated by the appellant in appeal could not be legally dealt with by the appellate authority ? Facts having bearing on the subject-matter of the present reference, are as follows : The assessee is an organisation owned by the Municipal Corporation of Greater Bombay. It carries on two major activities in Bombay, namely : (a) distribution of electricity supply in the city of Bombay and (b) public transport service, i. e. , operation of buses within the Greater Bombay area. In the year 1926 the assessee opened a showroom (known as "consumer's Advisory & Services Department") to advise and educate its consumers in handling the domestic electrical appliances. During the course of these activities, the assessee had made purchases/sales of various items including sale of ferrous, non-ferrous metal scrap and scrap motor vehicles, scrap auto-parts, etc. The assessee had applied for registration under section 22 of the Bombay Sales Tax Act, 1959 (hereinafter referred to as "the BST Act") and in pursuance of that application, a registration certificate was granted to the assessee by the Sales Tax Department on January 25, 1960. As per the said registration certificate, the assessee was to carry on various activities including the activity of selling scrap motor vehicles, scrap auto parts, ferrous and non-ferrous metal scrap, etc.

(3.) BEING aggrieved by the aforesaid order, the assessee filed an appeal bearing No. 53 of 1976 before the Maharashtra Sales Tax Tribunal, in so far as it pertains to taxing the sale of scrap aluminium cuttings and brass borings. During the pendency of the said appeal, the Sales Tax Department filed a Miscellaneous Application bearing No. 44 of 1982 stating therein that the decision of the Deputy CST in holding that the sale of buses and jeeps are not liable to tax is improper in the light of the special bench decision of the Tribunal in the case of M/s. Ravindra Heracus Pvt. Ltd. (Appeal No. 2 of 1976 decided on November 22, 1978 ). By its judgment and order dated March 14, 1986 the Sales Tax Tribunal while disposing of the said appeal as well as the miscellaneous application, held that the assessee was a dealer qua both the activities, i. e. , providing transport and distribution of electricity and, therefore, the sales of scrap/discarded materials as also of scrap vehicles which were connected with or incidental to the said activities were liable to tax. Accordingly, the Tribunal dismissed the appeal filed by the assessee and allowed the miscellaneous application filed by the Revenue.