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Friday, January 16, 2015

CIVIL APPEAL NOS. 354-355 OF 2015 (SPECIAL LEAVE PETITION (C) NOS.7939-7940 OF 2004) |ASSITANT COMMISSIONER, ERNAKULAM | | | |... Petitioner(s) | Versus |HINDUSTAN URBAN INFRASTRUCTURE LTD. AND | | |ORS. |... Respondent(s) |

                                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION

                   CIVIL APPEAL NOS.  354-355     OF 2015
             (SPECIAL LEAVE PETITION (C) NOS.7939-7940 OF 2004)


|ASSITANT COMMISSIONER, ERNAKULAM          |                                  |
|                                          |... Petitioner(s)                 |

                                   Versus

|HINDUSTAN URBAN INFRASTRUCTURE LTD. AND   |                                  |
|ORS.                                      |... Respondent(s)                 |

                               J U D G M E N T

H.L. Dattu, CJI.


1.          Leave granted.
2.          The issue that arises for our consideration and decision in  the
present appeals is whether an "Official Liquidator"  is  a  "dealer"  within
the meaning of section 2 (viii) of the Kerala General Sales  Tax  Act,  1963
(for short, "the Act, 1963"), and therefore would  be  required  to  collect
sales tax in respect of the sales effected by him  pursuant  to  winding  up
proceedings of a company in liquidation.
3.          These appeals are directed against the judgment(s) and  order(s)
passed by the High  Court  of  Kerala  in  M.F.A.  No.1394  of  2002,  dated
11.02.2003, and in Review Petition No.191 of  2003,  dated  21.03.2003.  The
Division Bench of the High Court in review confirmed the finding  in  M.F.A.
No.1394 of 2002  and  concluded  that  the  Official  Liquidator  is  not  a
"dealer" under the Act, 1963. However, by the impugned  judgment,  the  High
Court has set aside the finding of the learned Single Judge which held  that
the machinery purchased in  the  auction  sale  conducted  by  the  Official
Liquidator is not be liable to be taxed under the Act,  1963.  The  impugned
judgment has further accepted a fresh plea raised by the appellant that  the
auction purchaser would be liable to pay purchase tax under  section  5A  of
the Act, 1963.
4.           It  is  relevant  to  state  that  respondent  No.1,  that  is,
Hindustan Urban Infrastructure Ltd., had  filed  a  separate  appeal-  Civil
Appeal No.5048 of 2003 against the specific finding of  the  High  Court  in
the impugned judgment with regard to  the  liability  to  pay  purchase  tax
which was imposed upon the auction  purchaser  thereunder.  This  Court  has
separately dealt with the aforesaid question by its order  dated  04.09.2014
in the said civil appeal.
FACTS:-
5.          To appreciate the issues involved,  it  would  be  necessary  to
notice the facts leading up to  the  present  appeals.  M/s.  Premier  Cable
Company Ltd. (for short, "the Company"), was registered under the  Companies
Act, 1956 (for short, "the Act, 1956"), and engaged in the manufacturing  of
PVC power cables, Aluminium conductors, enameled wires, etc.  Pursuant to  a
recommendation by the Board for  Industrial  and  Financial  Reconstruction,
(for short, "BIFR"), the Company was ordered to be  wound  up  by  an  order
passed by the High Court in C.P. No.2 of 1996, dated 18.06.1998.  Respondent
No.2, that is, the Official  Liquidator  attached  to  the  High  Court  was
appointed to take charge of the assets and liabilities of  the  Company  and
to deal with the same in accordance with the provisions  of  the  Act,  1956
and the Rules framed thereunder.
6.          Pursuant to the aforesaid order, the Official Liquidator  issued
a notice inviting tenders, in respect of the sale of assets of  the  Company
in liquidation, dated 26.11.2001. The aforesaid assets  included  land  with
factory building, workshop building,  canteen  building,  godowns,  quarters
and other auxiliary buildings and also plant and machinery  of  the  company
in liquidation. The Terms and Conditions of the sale of the  assets  of  the
Company expressly provided, inter alia, that such sale would be  subject  to
confirmation by the High Court and further subject to any  subsequent  terms
and conditions as may be imposed by the High Court.
7.          Respondent No.1-auction  purchaser, in response  to  the  notice
inviting tenders issued by the Official Liquidator, offered to purchase  Lot
Nos.1-2 for a total amount of Rs.5,76,00,000/- (Rupees  Five  Crore  Seventy
Six Lakh only), by an  offer  letter  dated  18.12.2001.  It  was  expressly
stated therein that the said amount would  be  inclusive  of  all  statutory
levies such as Sales Tax, Central Sales Tax, Excise Duty, etc., if  any,  as
may  be  applicable.  After  accepting  the  offer  so  made,  the  Official
Liquidator had placed the same before the learned  Judge  dealing  with  the
company matters for its confirmation.
8.          Subsequent to the confirmation of the  said  sale,  the  auction
purchaser, being desirous to  transport  the  purchased  assets  across  the
border  of  multiple  States,  had  requested  the  Official  Liquidator  to
incorporate  the  relevant  sales  tax  registration  numbers  in  the  sale
invoices, vide letter dated 29.08.2002.  By  letter  dated  03.09.2002,  the
Official Liquidator had declined to accede to the request so made.
9.          Subsequently, the Official Liquidator filed an affidavit  before
the learned Single Judge of the High Court, inter  alia,  stating  that  the
Official Liquidator would neither be collecting nor be paying  any  cess  or
sales tax in respect of the sale effected by the  respondent  No.2.  It  was
stated that,  in  the  opinion  of  the  Official  Liquidator,  the  auction
purchaser should be directed by the High  Court  to  meet  any  expenses  or
liability towards payment of cess, sales tax, etc., if  and  when  the  same
becomes payable.
10.         An application was also filed by  the  Official  Liquidator,  in
the Company Petition before the learned Singe  Judge,  inter  alia,  seeking
clarification on  certain  aspects  of  the  matter  including  whether  the
auction purchaser would be liable to pay  tax  on  the  purchase  of  goods,
pursuant to  the  auction  conducted  and  further  to  direct  the  auction
purchaser to pay any tax as may be leviable by  the  Sales  Tax  Department.
The  learned  Single  Judge  after  considering  the  prayers  made  in  the
application has passed an order, in C.A. No.293 of 2002 and C.A.  No.333  of
2002 in C.P. No.2 of 1996, dated 30.10.2002, wherein it was  held  that  the
sale in question cannot be treated as a sale by the  Central  Government  or
by a registered dealer entitled to collect  tax  and  further  has  observed
that the auction purchaser cannot be treated as  a  dealer  under  the  Act,
1963 and further that the said sale in question would  not  be  exigible  to
sales tax.
11.         The Appellant, aggrieved by the  order  of  the  learned  Single
Judge, filed an appeal against  the  order  dated  30.10.2002,  inter  alia,
contending that the Official Liquidator would be bound to pay sales  tax  as
and when a sale of the  assets  of  the  company  in  liquidation  would  be
effected by him.  The Division Bench of the High Court by  an  order  passed
in M.F.A. No.1394 of 2002, observed that  the  "Official  Liquidator"  would
not fall within the definition  of  "dealer"  under  the  Act,  1963,  dated
11.02.2003. Accordingly the appeal  was  dismissed  and  the  order  of  the
learned Single Judge was confirmed.
12.          Aggrieved  by  the  aforesaid  order  dated   11.02.2003,   the
appellant filed Review Petition No.191 of 2003 before  the  High  Court.  In
the Review Petition, a new plea was advanced by the appellant claiming  that
even if the Official Liquidator  did  not  fall  within  the  definition  of
dealer under the Act, 1963, section 5A of the said Act  would  be  attracted
insofar as the auction purchaser is concerned.
13.         By the  impugned  judgment(s)  and  order(s)  passed  in  Review
Petition No.191 of 2003, dated 21.03.2003, the  High  Court  held  that  the
Official Liquidator cannot be treated as a dealer under the Act,  1963,  and
therefore it is not exigible for payment of sales tax.  However,  the  Court
was of the view that the auction purchaser is liable  to  pay  purchase  tax
under section 5A of the Act, 1963.
ISSUES:-
14.         The issues that arise  for  the  consideration  in  the  present
appeals are firstly, whether the Official Liquidator is  a  "dealer"  within
the meaning of the Act, 1963, and secondly, whether the Official  Liquidator
would be required to pay sales tax in respect of sales effected pursuant  to
a winding up proceedings.
SUBMISSIONS:-
15.         Shri V. Giri, learned counsel for the  appellant,  submits  that
the consistent stand taken by the Revenue, is that the  Official  Liquidator
is liable to pay sales tax on the transaction in question.  He  would  state
that the Official Liquidator was held to be a "dealer" under the  Act,  1963
by the learned Single Judge as well as by the Division  Bench  of  the  High
Court, and that it is only in review that the said finding was reversed.  To
support the decision of the learned Single Judge and the Division  Bench  of
the High Court, he would rely upon the definition of  "dealer"  as  provided
under the Act, 1963 and submit that the Official Liquidator is an  agent  of
the Central Government  and  therefore  would  deemed  to  be  a  dealer  as
provided under explanation 2 to section 2(viii)(f)  of  the  Act,  1963.  To
further substantiate his contention, he would refer to the Statement  filed,
by the Special Government Pleader  (Taxes),  appearing  for  the  Sales  Tax
Authorities, before the learned Single Judge of the High Court,  wherein  it
was categorically stated that the Official Liquidator  would  be  liable  to
pay tax at the relevant rate under the Act, 1963,  whether  or  not  he  had
collected the same from the auction purchaser.
16.         Shri C.S. Rajan, learned counsel for  the  Official  Liquidator-
respondent No.2, would support the findings of the High Court in the  review
petition and state that the Official Liquidator would not be liable  to  pay
any tax under the Act, 1963. He  would  further  state  that  the  liability
would in fact be on the auction purchaser who would be exigible to  purchase
tax under section 5A of the Act, 1963.
17.          Shri  Rajan  would  then  elaborate  upon  the  nature  of  the
activities carried on by the Official Liquidator and submit  that  since  an
Official Liquidator is  an  officer  of  the  Court,  he  merely  discharges
statutory functions imposed upon him and therefore cannot be held liable  to
pay tax under the Act, 1963. To support this submission,  he  would  further
refer to various provisions of the  Act,  1956  and  the  Companies  (Court)
Rules, 1959 (for short, "the Rules, 1959"). Shri Rajan would  lastly  submit
that  since  the  Official  Liquidator  discharges  statutory  functions  of
selling the assets of the Company in liquidation, he cannot be perceived  to
be carrying on "business" as defined under the Act, 1963 and thus cannot  be
exigible to tax.
18.         Shri S.K.  Bagaria,  learned  senior  counsel  for  the  auction
purchaser would submit that the question of payment of  purchase  tax  could
not arise because firstly, the contention was raised for the first  time  in
the review petition, and secondly, the said tax is a  single-point  levy  at
the first point of sale. He would contend that the auction  purchaser  could
not be made liable for a tax that was not even imposed or  demanded  by  the
competent authority. He would then  contend  that  the  Official  Liquidator
makes the sale on behalf of the Company and not as the owner.  Lastly,  Shri
Bagaria would refer to Rule 54 of the Kerala General Sales Tax  Rules,  1963
(for short, "the Rules, 1963") and section 17 of the Central Sales Tax  Act,
1956 (for short, "the CST Act") to demonstrate that  the  liability  to  pay
sales tax was clearly on the Official Liquidator.
19.         We have heard the learned counsel for the  parties  to  the  lis
and also carefully perused the orders passed by the courts  and  the  forums
below.
20.         The point for the consideration and decision of  this  Court  is
whether the Official Liquidator is a "dealer"  within  the  meaning  of  the
Act, 1963, and whether or not he would be  required  to  pay  sales  tax  in
respect of sales effected by him pursuant to winding up proceedings.
RELEVANT PROVISIONS:-
21.         To appreciate the arguments canvassed it is relevant  to  notice
the relevant provisions. They are- sections 448, 456, 457 of the Act,  1956;
Rules 232, 233 of the Rules, 1959; sections 2 (vi), 2 (viii), 5, 5A,  22  of
the Act, 1963; and Rule 54 of the Rules, 1963. Since these  provisions  have
been amended from time to time, we have considered the  provisions  as  they
were in statute book during the relevant period.
22.          Sections  448,  456,  457  of  the  Act,  1956  deal  with  the
appointment and powers of the Official Liquidator. Section 448 of  the  Act,
1956 provides for the appointment of an Official Liquidator for the  purpose
of winding up of a company. The Official Liquidator  so  appointed  conducts
the proceedings in the winding up of the company and performs other  duties,
as the court imposes upon him, in consonance  with  the  provisions  of  the
Act, 1956. Section 456 of the Act, 1956 states that pursuant  to  a  winding
up order, the liquidator shall take into his custody or under  his  control,
all the properties, effects and actionable claims to which  the  company  is
or appears to be entitled to. By the said provision, all the properties  and
effects of the company are deemed to be in the custody of  the  court,  from
the date of the winding up order. Section 457 of the  Act,  1956  lists  the
powers of the Official Liquidator. The powers include, inter alia, to  carry
on business of the company for  its  beneficial  winding  up,  to  sell  the
immovable and movable property and actionable  claims  of  the  company,  by
public auction or  private  contract,  and  to  do  all  things  as  may  be
necessary for winding up the affairs of the company and distribution of  its
assets. However, the powers conferred by virtue of the section  457  of  the
Act, 1956, on the liquidator, are subject to the control of the Court.
23.         In exercise of the powers conferred by sub-sections (1) and  (2)
of section 643 of the Act, 1956, the Rules, 1959 were enacted. The  relevant
rules regarding the collection and distribution of assets  in  a  winding-up
by court are found under Rules 232 to 234 of  the  Rules,  1959.   Rule  232
deals with the powers of the Official  Liquidator.  As  per  the  rule,  the
duties  imposed  on  the  Court  under  section  467(1)  of  the  Act,  1956
concerning the collection of the assets of the company and  the  application
of the assets in discharge of the company's liabilities must  be  discharged
by the Official Liquidator as an officer of the Court. The discharge of  the
aforesaid functions would be subject to the control of the Court and to  the
proviso in section 643(2)  of  the  Act,  1956.  Rule  233  states  that  in
discharge of the duties imposed upon the Official  Liquidator,  pursuant  to
section 467(1) of the Act, 1956,  and  for  the  purpose  of  acquiring  and
retaining possession of the property of the company, he must be  treated  as
a Receiver of the property appointed by the Court.
24.         Section 2 of the Act, 1963 provides for the meaning  of  certain
expressions in the said Act. Section 2(vi) defines "business" as follows:
"(vi) "Business" includes: -
(a) any trade, commerce or manufacture or any adventure or  concern  in  the
nature of trade, commerce,  or  manufacture,  whether  or  not  such  trade,
commerce, manufacture, adventure or concern is carried on with a  motive  to
make gain or profit and whether or not any profit accrues from  such  trade,
commerce, manufacture, adventure or concern; and
(b) any transaction in connection with, or incidental or ancillary  to  such
trade, commerce, manufacture, adventure or concern;"

25.         Section 2(viii) of the Act, 1963 deals with  the  definition  of
the term 'dealer' as under:
"(viii) "Dealer" means any person who carries on  the  business  of  buying,
selling,  supplying  or  distributing  goods,  executing   works   contract,
transferring the right to use any goods or supplying by way of  or  as  part
of any service, any goods directly or otherwise, whether  for  cash  or  for
deferred  payment,  or  for  commission,  remuneration  or  other   valuable
consideration and includes, -
(a) [Omitted]
(b) a casual trader;
(c) x x x x
(d) x x x x
(e) x x x x
(f) a person who whether in the course of business or not:
(1) transfers any goods, including controlled goods whether in pursuance  of
a  contract  or  not,  for  cash  or  deferred  payment  or  other  valuable
consideration;
(2) transfers property in goods (whether as goods or  in  some  other  form)
involved in the execution of a works contract;
(3) delivers any  goods  on  hire-purchase  or  any  system  of  payment  by
installments;
(4) transfers the right to use any goods for any  purpose  (whether  or  not
for a specified  period)  for  cash,  deferred  payment  or  other  valuable
consideration;
(5) supplies, by way of or as part of any service or  in  any  other  manner
whatsoever, goods, being food or any other articles  for  human  consumption
or any drink (whether or not intoxicating), where such supply or service  is
for cash, deferred payment or other valuable consideration;

Explanation:- (1) A society including a co-operative society, club  or  firm
or an association or body of persons, whether  incorporated  or  not)  which
whether or  not  in  the  course  of  business,  buys,  sells,  supplies  or
distributes goods from or to its members for cash or for  deferred  payment,
or for commission, remuneration or other valuable  consideration,  shall  be
deemed to be a dealer for the purposes of this Act;
Explanation: - (2) The Central  Government  or  a  State  Government,  which
whether or not in the course of business, buy, sell,  supply  or  distribute
goods, directly or otherwise, for cash  or  for  deferred  payment,  or  for
commission, remuneration or other valuable consideration,  shall  be  deemed
to be a dealer for the purposes of this Act.
(g) a bank or a financing institution, which, whether in the course  of  its
business or not, sells any gold or other valuable article  pledged  with  it
to secure any loan, for the realisation of such loan amount.
Explanation  I:  -  Bank  for  the  purposes  of  this  clause  includes   a
Nationalized Bank or a Schedule Bank or a Co-operative Bank;
Explanation II: - Financing Institution means a financing institution  other
than a bank;"

26.         On perusal of the aforementioned definitions,  it  would  appear
that the term "business" has been given a broad meaning by including  within
its ambit both incidental and ancillary transactions. Further, it  has  also
eliminated the  requirement  of  a  profit  motive  as  being  an  essential
component. The definition of "dealer" has also been given a wide  ambit.  It
includes any person carrying on business of, inter  alia,  buying,  selling,
supply or distribution of goods, whether directly or  otherwise.  All  modes
of payment whether  by  way  of  cash,  commission,  remuneration  or  other
valuable consideration have been included therein. It also  includes,  inter
alia, a casual trader, a non-resident dealer, a commission agent, a  broker,
an  auctioneer  and  other  mercantile  agents.  Sub-section  (f)   of   the
definition further expands the scope of the provision  by  including  within
its ambit, an array of transactions, which may or may not be in  the  course
of  business.  Section  2(viii)(f)(1)   expressly   includes,   within   the
definition of a "dealer", a person who whether in the course of business  or
not transfers any goods, whether in the pursuance of a contract or not,  for
cash or deferred payment.
27.         Section 5 of the Act, 1963 is the charging provision  under  the
said Act and provides for the levy of  tax  on  the  sale  and  purchase  of
goods. It provides that every dealer, whose total turnover for that year  is
not less than Rs.2,00,000/-, would be liable to pay tax as per rates and  at
points as specified in the Schedules to the Act, 1963.  The  First  Schedule
to the Act, 1963 would be relevant for the purpose of  the  present  appeal.
Serial No.84 of the said Schedule deals with, inter alia, Machinery  and  it
provides that the point of levy shall be at the point of first sale  in  the
State by a dealer who is liable to tax under section 5 of the Act, 1963.
28.         Section 5A of the Act, 1963 is the charging provision as  regard
to the imposition of purchase tax. Under the said provision,  the  purchaser
of any goods which may be consumed, used,  disposed  or  dispatched  to  any
place outside the State from a registered dealer will  incur  liability  for
payment of purchase tax. The provision amply  clarifies  that  purchase  tax
would be applicable only in circumstances in which no tax is  payable  under
sub-sections (1), (3), (4) or (5) of section 5 of the Act, 1963.
29.         The Rules, 1963, have been enacted in  exercise  of  the  powers
conferred by section 57 of the Act, 1963. Rule 54 of the Rules, 1963,  reads
as follows:
"54. Liability of Court of Wards, Official Trustee etc.-
In the case of business, owned by a dealer whose estate or  any  portion  of
whose estate is under the control  of  Court  of  Wards,  the  Administrator
General, the official trustee or any  Receiver  or  manager  (including  any
person whatever be his designation, who in  fact  manages  the  business  on
behalf of the dealer) appointed by, or, under any order of a Court, the  tax
shall  be  levied  upon  and  recoverable  from   such   Court   of   Wards,
Administrator General, Official Trustee, Receiver or Manager in like  manner
and on the same terms as it would be leviable upon and recoverable from  the
dealer if he were conducting the business himself, and  all  the  provisions
of the Act and Rules made there under shall apply accordingly."

30.         The  aforementioned  Rule  contemplates  a  scenario  wherein  a
business, owned by a dealer, is  under  the  control  of,  inter  alia,  the
official trustee or receiver or manager,  including  any  other  person  who
manages the business of the said dealer, who is appointed by an order  of  a
Court. In such an event, tax would be recoverable from  such  a  person  who
controls the business of the dealer in the same or  like  manner,  as  would
have been recoverable from the dealer itself.
DISCUSSION:-
31.         At the outset, it would be necessary to make  reference  to  the
Statement/Affidavit  filed  by  the  Special  Government  Pleader   (Taxes),
appearing for the Revenue, before the  learned  Single  Judge  of  the  High
Court. In the said Statement/Affidavit, the Revenue has stated that  a  sale
by the Official Liquidator, whether by auction or otherwise, is  a  sale  by
the Central Government and  therefore  the  Official  Liquidator  becomes  a
dealer under the Act, 1963. It was further stated that although tax  may  be
collected only by a registered dealer, the Central Government  is  empowered
to collect tax in the  manner  a  registered  dealer  is  entitled  to.  The
Revenue, in its conclusion therein, has stated that the Official  Liquidator
would be liable to pay tax at the relevant rate, whether  he  had  collected
the same or not.
32.         To appreciate the stand of the Revenue, it would  be  profitable
to refer to Section 2(viii) of the Act, 1963 which  defines  the  expression
"dealer" as any person who carries  on  the  business  of  buying,  selling,
supplying or distributing  goods,  executing  works  contract,  transferring
right to use any goods or supplying by way of or as  part  of  any  service,
any goods directly or indirectly. The aforementioned activities are  carried
out for the  payment  of  consideration,  in  the  form  of  cash,  deferred
payment, commission,  remuneration,  etc.  Thus,  the  emphasis  under  this
clause of "carrying on business" is to be understood in  a  wide  sense  and
not merely restricted to the activity of buying and selling.
33.         The expression "business" has been given a  wide  and  inclusive
definition, whereby 'any business, trade, commerce  or  manufacture  or  any
activity of the said nature, whether or not it is carried on with  a  motive
for  profit'  has  been  expressly  included.  It   further   includes   any
transaction in connection with such trade, commerce, etc.  including  within
its purview, all ancillary or incidental activities in connection  with  any
trade, commerce, etc.

34.         Section 2(viii)(f) further expands the  definition  of  "dealer"
enabling a far wider class of persons to fall within its ambit. It  includes
any person who transfers any goods, transfers property in goods involved  in
the execution of a works contract, delivers any goods on  hire  purchase  or
any system of payment by installments, transfers the right to use any  goods
for any purpose and  lastly,  any  food  or  beverage  supplier  or  service
provider, fit for human consumption. The Explanation  1  to  sub-clause  (f)
includes a society, club,  firm  or  an  association  or  body  of  persons,
whether incorporated or not. Explanation 2 includes the Central  Government,
State Government and any of its apparatus within the scope of this  section.

35.          Therefore,  given  the  exceptionally   wide   scope   of   the
definition, prima facie, it can be concluded that any person or entity  that
carries on any  activity  of  selling  goods,  could  be  categorized  as  a
"dealer" under the Act, 1963.  To  test  the  aforesaid  conclusion  in  the
context of the issue  at  hand,  we  would  delve  into  the  interpretation
ascribed by this Court to the  term  "dealer".  A  careful  reading  of  the
definition of "dealer" under the Act, 1963, would make it evident  that  the
legislature intended to provide for an inclusive criterion and  broaden  the
ambit of the  said  classification.  The  legislature  did  not  propose  to
restrict the scope of the term as perceived in common parlance.
36.         The definition of a dealer under various sales tax  legislations
has been given a  wide  import  by  several  decisions  of  this  Court.  In
Chowringhee Sales Bureau (P) Ltd. v. CIT, (1973) 1 SCC  46,  inter  alia,  a
challenge was made to the explanation to the definition  of  "dealer"  under
the Bengal Finance (Sales Tax) Act, 1941 on the ground  that  is  sought  to
levy a tax on a person who is neither a seller nor  a  purchaser.  A  three-
Judge Bench of this Court, rejecting the said challenge, held that the  term
"dealer" would include an auctioneer who carries on the business of  selling
and who has in the customary course of  business  authority  to  sell  goods
belonging  to  the  principal.  It  was  further  observed  that  the  given
explanation sought to tax a transaction of sale of goods. It was held  that,
a statutory provision providing for a levy of sales tax on a person such  as
an auctioneer, would  be  permissible,  if  there  is  a  close  and  direct
connection between the transaction of sale and the person  made  liable  for
the payment of sales tax.
37.         In State of U.P. v. Union of  India,  (2003)  3  SCC  239,  this
Court held that the Central Government, when involved  in  the  business  of
buying and selling, could be treated as a "dealer" under the U.P. Sales  Tax
Act, 1940. The Court observed as follows:
"11. ...It is thus clear that in regard to a transfer of the  right  to  use
any goods both a person and a Government will be within  the  ambit  of  the
definition of "dealer" subject to the following distinction: a person to  be
a "dealer" should carry on the business of  buying,  selling  etc.,  whether
regularly or otherwise, but a Government which buys, sells etc. (whether  in
the course of business or otherwise) will be a "dealer" for purposes of  the
U.P. Act. Inasmuch as the definition of  "sale"  includes  any  transfer  of
property in the goods and a transfer of the right to use any goods  for  any
purpose, DoT which engages in transfer of right to use any goods will  be  a
"dealer" within the meaning of sub-clause (iv) of clause (c)  of  section  2
of the U.P. Act."

38.         In State of T.N. v. Shakti  Estates,  (1989)  1  SCC  636,  this
Court while ascertaining whether the assessee could be treated as  a  dealer
gave a wide import to the term under the Tamil Nadu General Sales  Tax  Act,
1959. The Court observed as follows:
"10. Moreover, we have also to give full effect to the  definitions  in  the
statute we are concerned with. The definition of a "business" also  includes
"any transaction in connection with or incidental  to  or  ancillary"  to  a
trade and thus, even on the assessees' own arguments, these activities  were
incidental and ancillary to the business which the assessee was carrying  on
or definitely  intended  to  carry  on.  It  is  also  immaterial,  on  this
definition that the assessees may not have had a "motive of making a  profit
or gain" on these sales though on the facts, it is clear  that  such  motive
must have existed and, in any event, could not be ruled out.  The  reference
to a "casual" dealer in the second definition  also  renders  it  immaterial
that the assessees may not have intended to be regular dealers in  sleepers,
timber,  firewood  or  charcoal  but  that  this  was  something  casual  or
incidental to the acquisition and exploitation of a  forest  for  running  a
plantation."

39.         In State of T.N. v. M.K. Kandaswami,  (1975)  4  SCC  745,  this
Court while determining the interpretation of the term  "dealer"  under  the
Madras General Sales Tax Act, 1959 gave a broad interpretation to include  a
person  who  not  only  carries  on  business  of  "selling,  supplying   or
distributing" goods but  also  the  one  who  carries  on  the  business  of
"buying" only.
40.         In Karya Palak  Engineer,  CPWD  v.  Rajasthan  Taxation  Board,
(2004) 7 SCC 195, this Court held that a contractor, despite not  being  the
owner but merely  the  custodian  of  the  goods,  as  a  dealer  under  the
Rajasthan Sales Tax Act, 1994.
41.         In State of Orissa v. Titaghur Paper Mills Co. Ltd.,  1985  Supp
SCC 280, while ascertaining whether the Central  Government  or  its  agents
could be treated as be "dealer", this Court observed as follows:
"26. What is pertinent to note about the new definition of "dealer" is  that
in the case of the Central Government, a State Government or  any  of  their
employees acting in official capacity on behalf of such  Government,  it  is
not necessary that the purchase,  sale,  supply  or  distribution  of  goods
should be in the course of business, while in all other cases for  a  person
to be a dealer he must be carrying on the business of  purchasing,  selling,
supplying or distributing goods."

42.         In Food Corporation of India v. State of Kerala,  (1997)  3  SCC
410, this Court was ascertaining whether the procurement of food  grains  by
the Food Corporation of India, pursuant  to  levy  orders  could  amount  to
sale or purchase to incur sales/ purchase tax liability  as  levied  by  the
States. This Court held that since there was no statutory compulsion in  the
matter of sale or purchase of fertilizers and parties had the discretion  to
enter into consensual contractual agreements  subject  minimal  restrictions
such as price fixation, quota requirements, etc., there is no hesitation  in
holding that the activity of distribution of fertilizers, pursuant  to  levy
orders would amount to sale which is eligible to incur tax  liability.  This
Court stated that supply or distribution of goods need not be in  course  of
business to be considered a sale.
43.         Thus, on perusal of the aforesaid decisions of  this  Court,  we
are of the view that the definition of  "dealer"  under  various  sales  tax
legislations has been given a broad and inclusive interpretation.  It  would
be gainsaid to state that such a broad and expansive  interpretation  is  in
consonance with what the legislature intended with regard to imposing  sales
tax liability on all transactions of sale of goods.  Therefore,  it  can  be
concluded that the definition of a  "dealer"  under  the  Act,  1963,  would
include persons, if they  are  involved  in  carrying  on  any  business  or
trading activity, such as the sale of machinery  as  in  the  present  case.
Therefore, as a  necessary  sequitur,  the  Company  in  liquidation,  whose
assets are sold by way of an auction, would be a  "dealer"  under  the  Act,
1963.
44.         Section 5 of the  Act,  1963  is  the  charging  provision  with
regard to imposition of sales tax. It envisages  levy  of  tax  on  sale  or
purchase of goods by a  dealer.  Section  5(1)  of  the  Act,  1963  imposes
liability on every dealer whose total turnover for  one  year  is  not  less
than Two Lakh rupees. Section 5(1)(i) enumerates tax liability  in  case  of
goods specified in the First or Second Schedule to  the  Act,  1963  at  the
rates and only at the points  specified  against  such  goods  in  the  said
Schedules. Serial No.84(i) of the First Schedule stipulates the rate of  tax
payable on sale of, inter alia, machinery. In  this  regard,  the  point  of
levy of sales tax is at the point of first sale in the  State  by  a  dealer
who is liable to tax under section 5 of the Act, 1963.
45.         Thus, pursuant to section 5 of the Act, 1963,  in  the  case  of
goods specified in the First and  Second  Schedule,  the  single  point  tax
could be levied only at the rates and points specified  against  such  goods
in the said Schedules. The First Schedule specifies that the point  of  levy
of tax for the goods in question could be only at the point  of  first  sale
in the State by a dealer. In the instant case, the  dealer  under  the  Act,
1963 would be liable to pay sales tax for the machinery sold  at  the  point
of first sale, as per section 5 read with the First  Schedule  of  the  Act,
1963. In light of the above, we are  of  the  considered  opinion  that  the
transaction in question in the present  appeal  would  be  exigible  to  tax
under Section 5(1) of the Act, 1963.
46.         Section 5-A of  the  Act,  1963  stipulates  certain  situations
wherein purchase tax could be  imposed  on  any  dealer  who  purchases  any
goods, either from a registered dealer or from any other  person,  the  sale
or purchase of which is  liable  to  tax  under  Act,  1963.  The  aforesaid
provision however will apply only in circumstances when no  tax  is  payable
under  sub-sections  (1),(3),(4),(5)  of  section  5.  However,  as  noticed
hereinabove, the given transaction is exigible to tax under Section 5(1)  of
the Act, 1963, and therefore tax liability under  Section  5A  of  the  Act,
1963 would not apply to the said transaction.
47.         Before delving into whether the Official Liquidator  could  also
be treated as a "dealer" under the Act, 1963, it would be apposite  to  take
into account the powers of the Official Liquidator, as  provided  under  the
Act, 1956.  The  Official  Liquidator,  in  generic  terms,  is  an  officer
appointed to conduct the proceedings and to assist the Court in the  winding
up of a company.
48.         In A. Ramaiya, Guide to the Companies Act, 16th Edition  (2004),
while interpreting the powers of the Official Liquidator under  section  457
of the Act, 1956 observed as follows:
"A liquidator is an agent employed for the purpose  of  winding  up  of  the
company. His principal duties are to take possession of assets, to make  out
the requisite lists of contributors  and  of  creditors,  to  have  disputed
cases adjudicated upon, to realise the assets subject to the control of  the
court in certain matters and to apply the proceeds on the  payments  of  the
company's debts and liabilities in due course of administration, and  having
done that, to divide the surplus amongst the contributories  and  to  adjust
their rights."

49.         Section 457(3) of  the  Act,  1956  expressly  states  that  the
powers of the liquidator are subject to control by  the  court.  The  powers
conferred upon the liquidator can be exercised by him alone  and  he  cannot
authorise  any  other  person  to  exercise  those  powers.  The  expression
'control by court' was discussed  by  this  Court  in  Navlakha  &  Sons  v.
Ramanuja Das, (1969) 3 SCC 537,  wherein  it  was  observed  that  when  the
liquidator exercises or proposes to exercise any of the powers,  a  creditor
or contributory may apply to the Court with respect of such exercise. It  is
the duty of the Court to safeguard the interests  of  the  company  and  its
creditors and satisfy itself with the adequacy of the price fetched. It  may
also  be  appropriate  to  consider  Rule  232  of  the  Rules,  1959  which
enumerates the  duty  of  an  Official  Liquidator  in  the  collection  and
application of the assets of the company, which is discharged by him  as  an
officer of the Court.
50.         In the case of Hari Prasad  Jayantilal  &  Co.  v.  V.S.  Gupta,
Income Tax Officer, Ahmedabad & Anr., AIR 1966  SC  1481,  this  Court  held
that the liquidator is merely an agent of  the  company  to  administer  its
property for the purposes prescribed by the Act, 1956. The Court  held  that
while  distributing  the  assets,   including   accumulated   profits,   the
liquidator acts merely as an agent or administrator for  and  on  behalf  of
the company. The Court observed as follows:
"7. ...The property of the Company does  not  vest  in  the  liquidator:  it
continues to  remain  vested  in  the  Company.  On  the  appointment  of  a
liquidator, all the powers of the Board of directors and of the managing  or
whole-time directors, managing agents, secretaries and treasurers cease  (s.
491), and the liquidator may  exercise  the  powers  mentioned  in  s.  512,
including the power to did such things as may be necessary  for  winding  up
the affairs of the Company  and  distributing  its  assets.  The  liquidator
appointed in a members' winding up is merely an  agent  of  the  Company  to
administer the property  of  the  Company  for  purpose  prescribed  by  the
statute. In  distributing  the  assets  including  accumulated  profits  the
liquidator acts merely as an agent or administrator for  and  on  behalf  of
the Company."

51.         In Ajay G. Podar  v.  Official  Liquidator  of  J.S.  &  W.M.  &
Others, (2008) 14 SCC 17, this Court considered the question  pertaining  to
bar of limitation under the Act, 1956 for misfeasance proceedings  filed  by
the Official  Liquidator.  While  discussing  the  powers  of  the  Official
Liquidator under section 457(1) of the Act, 1956, the Court was of the  view
that the Official Liquidator must be authorised to take steps  for  recovery
of assets by the Company Court under the  winding  up  order  and  the  said
proceedings must be initiated in the name of the company and  on  behalf  of
the company to be wound up. This Court had further opined that the  Official
Liquidator derives his authority from the provisions of the Act, 1956.
52.         It would be beneficial to notice the views of Courts in  England
insofar as powers of the Official Liquidator during winding up  proceedings.
In Re Mesco Properties, (1980) 1  All  ER  117,  the  Court  of  Appeal  was
ascertaining  as  to  whether  a  company  could  incur  tax  liability   in
consequence of the realization of its assets after a winding  up  order  was
passed and whether the Official Liquidator was the proper officer  to  incur
such liability. The Court, in the Re Mesco Properties case  (supra),  at  p.
120, observed as follows:
"... It must, in my view, be open to a liquidator to apply to the court  for
guidance upon the question whether, if he discharges a certain liability  of
the company in liquidation, the payment will  be  a  necessary  disbursement
within the meaning of rule 195. That is what  the  liquidator  is  doing  in
this case. The company is liable for the tax which is due. The tax ought  to
be paid. The liquidator is the proper officer to pay it. When  he  pays  it,
he will clearly make a disbursement. In my judgment it will be  a  necessary
disbursement within the meaning of  the  rule.  Moreover  common  sense  and
justice seem to me to require that  it  should  be  discharged  in  full  in
priority to the unsecured creditors, and to any expenses  which  rank  lower
in priority under rule 195. The tax is a consequence of the  realisation  of
the assets in the course of the winding up of the company. That  realisation
was  a  necessary  step  in  the  liquidation;  that  is  to  say,  in   the
administration of the insolvent estate. The fact that  in  the  event  there
may be nothing available for the unsecured creditors does not, in  my  view,
mean that the realisation was not a step taken in the interests of  all  who
have claims against the company. Those claims must necessarily  be  met  out
of the available assets in due order of priority. Superior claims may  baulk
inferior ones, but the liquidator's duty is to realise the  assets  for  the
benefit of all in accordance with their rights. If  in  consequence  of  the
realisation,  the  company  incurs  a  liability,  the  discharge  of   such
liability must, in my judgment, constitute a charge or expense  incurred  in
the winding up within section 267 of the Companies Act 1948 and  must  also,
in my view, fall within rule 195."

53.         Further, the House of Lords in Ayerst (Inspector of Taxes) v.  C
& K (Construction) Ltd., (1975) 2 All ER 537, held that a company,  pursuant
to a winding up order, ceases to have the custody and control of its  assets
which are thereafter administered  exclusively  for  the  benefit  of  those
persons who are entitled to share in the  proceeds  of  realisation  of  the
assets. The House of Lords elaborately discussed the role  of  the  Official
Liquidator in this regard and observed, at p. 177, as follows:
"The functions of the liquidator are thus similar  to  those  of  a  trustee
(formerly  official  assignee)  in  bankruptcy  or  an   executor   in   the
administration of an estate of a deceased person. There  is,  however,  this
difference: that whereas the legal title in the  property  of  the  bankrupt
vests in the trustee and the legal title to property of the  deceased  vests
in the executor, a winding-up order does not of itself  divest  the  company
of the legal title to any of  its  assets.  Though  this  is  not  expressly
stated in the Act it is implicit in the language  used  throughout  Part  V,
particularly  in  sections  243  to  246  which  relate  to  the  powers  of
liquidators  and  refer  to  'property  ...  to  which  the  company   is...
entitled,' to 'property... belonging to the company,' to 'assets...  of  the
company' and to acts to be done by  the  liquidator  'in  the  name  and  on
behalf of the company."

54.         In light of the aforesaid, we would conclude  that  an  Official
Liquidator- (i) derives its authority from the provisions of the Act,  1956;
(ii) acts  on  behalf  of  the  company  in  liquidation  for  the  purposes
prescribed by the Act, 1956; (iii) is appointed by and is under the  control
and supervision of the Court while discharging his duties.
55.         Having determined the status of  an  Official  Liquidator  under
the Act, 1963, it would now be appropriate for this Court to look  into  the
nature of liability, if any, imposed on  the  Official  Liquidator  for  the
purposes of taxation. For this purpose, we require to consider  Rule  54  of
the Rules, 1963 which imposes  liability,  inter  alia,  on  a  receiver  or
manager or other person appointed by an order of the  court,  in  the  event
that a business owned by  a  dealer,  is  under  the  control  of  the  said
receiver or manager or person, whatever be  his  designation,  who  in  fact
manages the business on behalf of the dealer. The aforesaid  rule  expressly
provides that tax shall be levied upon and recoverable from  such  receiver,
manager, etc., in the  same  manner,  as  it  would  be  leviable  upon  and
recoverable from the dealer. Such tax  liability  may  be  incurred  by  any
person managing or conducting the business on behalf of the dealer. The  tax
liability incurred by such person will be equivalent to the liability  which
would be levied upon  the  dealer  if  he  were  conducting  such  business.
Further that under Rule  233  of  the  Rules,  1959,  for  the  purposes  of
acquiring and retaining  possession  of  the  property  of  the  company  in
liquidation, the Official Liquidator would be in  the  same  position  as  a
receiver.
56.         Since the Official Liquidator is akin to an agent  employed  for
the purpose of winding up of a company, he  steps  into  the  shoes  of  the
Directors of the said Company for the purposes of discharging the  statutory
functions of an Official Liquidator. Thus, during the said proceedings,  the
Directors cease to exercise  any  functions  from  the  date  on  which  the
Official Liquidator is appointed and all powers and functions  for  carrying
on  the  business  of  the  company  thereafter  vest  with   the   official
liquidator.
57.         Having glanced through the settled principles of law,  we  would
revert back to the controversy in  the  present  appeals.  The  first  issue
canvassed before this Court by the learned counsel for the  parties  to  the
lis, is whether the Official Liquidator herein would fall under the  purview
of a "dealer" as defined under the Act,  1963.  And  secondly,  whether  the
Official Liquidator would be liable to pay sales tax  in  respect  of  sales
effected by him pursuant to winding up proceedings.
58.         In the present  case,  the  Official  Liquidator  had  issued  a
notice inviting tenders for the sale of  the  assets  of  the  Company.  The
offer of the auction purchaser was accepted and duly confirmed by  the  High
Court. However, the dispute herein arose  in  respect  to  determination  of
which party would be exigible to sales tax.
59.          From  the  discussion  in  the  preceding  paragraphs,  we  can
conclude an Official Liquidator is an officer of the Court and that for  the
purpose of discharging statutory obligations imposed under  the  Act,  1956,
the Official Liquidator merely steps  into  the  shoes  of  the  company  in
liquidation. By virtue of the notice issued by the Official  Liquidator  for
inviting tenders, dated 26.11.2001, it is amply evident that the  liquidator
intended to conduct a transfer of the said goods in liquidation.  Since  the
conduct of an auctioned sale involved transfer of  goods,  it  falls  within
the wide ambit of section 2(viii)(f) of the Act, 1963.
60.         The observation  of  the  Court  of  Appeals  in  the  Re  Mesco
Properties case (supra), would  appear  to  be  squarely  applicable  to  be
present factual matrix, that is, during a winding  up  proceedings,  if  tax
requires to be collected from the Company  in  liquidation,  the  liquidator
would be the proper officer to pay the same.
61.          This  Court  has  noticed  hereinabove  that  the  Company   in
liquidation is a "dealer" with regard to the sale of its assets  by  way  of
an auction under a winding up order. Further, we have  noticed  the  settled
law that an Official Liquidator steps into the shoes of the Director of  the
company in liquidation and performs his statutory  functions  in  accordance
with the directives of the Court. Furthermore, Rule 54 of  the  Rules,  1963
contemplates a situation where a business owned by a dealer,  is  under  the
control of a receiver or manager or any other person,  irrespective  of  his
designation, who manages the business on behalf of the said dealer.  In  the
said scenario, the said person, in-charge of the business on behalf  of  the
dealer, would be exigible to sales tax in the same manner as it  would  have
been leviable upon and recoverable from the  dealer  itself.  Therefore,  it
can be concluded that the liability to pay sales tax, in the  present  case,
would be on the Official Liquidator in the same manner as the  dealer,  that
is, the Company in liquidation.
62.         Pursuant  to  section  5  of  the  Act,  1963,  the  Company  in
liquidation, as a dealer, will incur liability  to  pay  sales  tax  at  the
point of first sale as incurred by any other dealer under the said  Act.  By
placing reliance upon Rule 54 of the  Rules,  1963,  the  liability  to  pay
sales tax is borne by the Official Liquidator as a manager  or  receiver  of
the property of the  company  in  liquidation.  Therefore,  we  are  of  the
considered opinion that the Official Liquidator would  be  required  to  pay
the tax payable on the sale of the assets of the company in liquidation.
63.         As regards the liability of the auction purchaser,  this  Court,
in an order passed in Civil Appeal No.5048 of 2003,  has  observed  that  in
view of facts and circumstances of the case,  the  auction  purchaser  would
not be liable to pay sales tax. The  offer  of  the  auction  purchaser,  as
accepted by the Official Liquidator and confirmed by  the  High  Court,  was
inclusive of all taxes. It would have been the bounden duty of the  Official
Liquidator to have separated an amount for the payment of  taxes  under  the
Act, 1963 to avoid any liability. It would be  gainsaid  in  repeating  that
the Special Government Pleader (Taxes), on behalf  of  the  Revenue,  before
the learned Single Judge of the High  Court  had  clearly  stated  that  the
liability to pay sales tax would be on the Official Liquidator.
64.         In the  result,  we  allow  these  appeals  and  set  aside  the
impugned judgments and orders passed by the High Court.
Ordered accordingly.


                                                      ..................CJI.
                                                                [H.L. DATTU]

                                                      ....................J.
                                                                [S.A. BOBDE]
NEW DELHI,
JANUARY 13, 2015.

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