JUDGMENT Rajes Kumar, J.
1. Present three revisions under Section 11 of U.P. Trade Tax Act (hereinafter referred to as "Act") are directed against the order of Tribunal dated 21st February, 1997 relating to the assessment years. 1983-84. 1984-85 and 1985-86.
2. Opposite party is a Cooperative Society and engaged in the distribution of coal to its member on the basis of the allotment of coal by the Joint Director of Industries. During the aforesaid years, opposite party had purchased coal and thereafter distributed the said coal to its member on consideration. The claim was that it was not the dealer within the definition of Section 2(c) of the Act and the distribution of coal to its member was not the sale within the meaning of Section 2(h) of the Act. Aforesaid claim was not accepted by the assessing authority and the assessing authority treated the opposite party as a dealer; its activity of distributing the coal to its member as a business; and the supply of coal to the members as a sale and, accordingly, the tax on the price was levied. Opposite party filed appeals before the Assistant Commissioner (Judicial). Assistant Commissioner (Judicial) vide order dated 30.11.1991 allowed the appeals and deleted the tax. It was held that the opposite patty was not the dealer and the distribution of coal was not the sale. Commissioner of Trade Tax filed appeals before the Tribunal. Tribunal by the impugned order rejected the appeals.
3. Heard learned Counsel for the parties.
4. The facts of the case are not in dispute. The question for consideration is that on the admitted fact, the opposite party being a cooperative society and had distributed/supplied coal to its member on the consideration, on the basis of the allotment of coal by the Joint Director of Industries, is a dealer under Section 2(c) of the Act and the supply of coal to its member is a sale.
5. Learned Standing Counsel submitted that under Section 2(c) of the Act which defines 'dealer' cooperative society and other society, who carries on such business of buying, selling, supplying or distributing goods for cash or deferred payment or for commission, remuneration or other valuable consideration is a dealer. He submitted that under Section 2(h) of the Act, the supply of goods by any unincorporated association or body of persons to a member for cash, deferred payment or other valuable consideration is a sale. In this view of the matter, the opposite party is a dealer and the distribution or supply of coal to its member for cash payment is a sale and liable to tax. learned Counsel for the opposite party submitted that the society was constituted by the members for the proper distribution of coal and after the purchase of the coal by the society, the same were distributed to the members as per allotment by the Joint Director of Industries on the same price on which coal was purchased. Thus, distribution of coal was not sale. In support of his contention, he placed reliance on the decisions, relied upon by the Tribunal in its order, namely, Val Metal Utensial mafg. Asso. reported in 1980 STI 90, Chittai Cooperative Sugar Works, reported in 1983 STI 1654, Madurai Kothari Javaliurpardhi Angarglakangum Ltd. reported in 1980 STI 473, Quality Marked Footwear Manufacturers Cooperative Association Ltd. v. CST reported in 26 STC 79, Youngmen Indian Association reported in 28 STC 241 (SC), Sports Club of Gujarat Ltd. v. CST reported 1975 STC 511 and Carpet Cooperative Federation reported in 1971 UPTC 256. He further submitted that in the supply of coal by the opposite party, ingredient of sale was not complete.
6. Having heard the learned Counsel for the parties, I have perused the order of the Tribunal and the authorities below.
7. I find substance in the argument of the learned Standing Counsel Section 2(c) of the Act, which defines "Dealer", and Section 2(h) of the Act, which defines "Sale" enforced during the relevant assessment year, reads as follows:
Section 2 (c) "dealer" means any person who carries on in Uttar Pradesh (whether regularly or otherwise) the business of buying, selling, supplying or distributing goods directly or indirectly, for cash or deferred payment or for commission, remuneration or other valuable consideration and includes-
(i) a local authority, body corporate, company, any cooperative society or other society, club, firm, Hindu undivided family or other association of persons which carries on such business;
(ii) a factor, broker, arhati, commission agent, del credere agent, or any other merchantile agent, by whatever name called and whether of the same description as hereinbefore mentioned or not, who carries on the business or buying, selling, supplying or distributing goods belonging to any principal, whether disclosed or not;
(iii) an auctioneer who carries on the business of selling or auctioning goods belonging to any principal, whether disclosed or not and whether the offer of the intending purchaser is accepted by him or by the principal or nominee of the principal;
(iv) A Government which, whether in the course of business or otherwise buys, sells, supplies or distributes goods, directly or otherwise for cash or for deferred payment or for commission, remuneration or other valuable consideration;
(v) Every person who acts within the State as an agent of a dealer residing outside the State, and buys, sells, supplies or distributes goods in the state or acts on behalf of such dealer as-
(a) merchantile agent as defined in the sale of goods At, 1930; or
(b) an agent for handling of goods or documents of title relating to goods; or
(c) an agent for the collection or the payment of the sale price of goods or as a guarantor for such collection or such payment.
(vi) a firm or a company or other body corporate, the principal office or headquarters whereof is outside the State having a branch or office in the State in respect of purchases or sales, supplies or distribution of goods through such branch or office;
Provided that a person who sells agricultural or horticultural grown on any land in which he has an interest, whether as an owner, usufructuary mortagee, tenant, or otherwise, or who sells poultry or dairy products from fowls or animals kept by him shall not, in respect of such goods be treated as a dealer Section 2(h) "sale", with its grammatical variations and cogate expressions, means any transfer of property in goods (otherwise than by way of a mortgage, hypothecation, charge or pledge) for cash or deferred payment or other valuable consideration, and include-
(i) a transfer, otherwise than in pursuance of a contract, of property in any goods for cash, deferred payment or other valuable consideration;
(ii) a transfer of property in goods (whether as goods or in some other form) involved in the execution of a works contract;
(iii) the delivery of goods on hire purchase or any system of payment by instalments;
(iv) a transfer of the right to use any goods for any purpose (whether or not for a specified period) for cash, deferred payment or other valuable consideration;
(v) the supply of goods by any unincorporated association or body of persons to a member thereof for cash, deferred payment or other valuable consideration; and the supply, by way of or as part of any service or in any other, manner whatsoever, of goods, being food or any other article for human consumption or any drink (whether or not intoxicating, where such supply or service is for cash, deferred payment or other valuable consideration)
8. Under the definition of 'Dealer' referred hereinabove cooperative society and other society which carries on the business of buying, selling, supplying or distributing goods directly or indirectly, for cash or deferred payment or for commission, remuneration or other valuable consideration are included. Thus, the opposite party being a cooperative society and engaged in the business of buying, selling, supplying and distributing the goods for payment is a dealer. Definition of "sale"' under Section 2(h) of the Act has been amended by U.P. Act No. 25 of 1985 with effect from 2nd February. 1983 and the definition of sale has been enlarged including the supply of goods by any unincorporated association or body of persons to a member thereof for cash, deferred payment or other valuable consideration. Thus, the supply of coal by the opposite party to the members for payment is a sale within the meaning of Section 2(h) of the Act and is liable to tax. The view of the Tribunal and the first appellate authority are erroneous and liable to be set aside.
9. In the case of Cooperative Marketing Society, Ltd. Kalpi Jalaun v. The Commissioner of Sales Tax reported in 1972 UPTC 86. the Division Bench of this Court held that the assessee, Cooperative Marketing Society Ltd was engaged in selling the goods of its agriculturists members on the strength of the authority given to it by the principal to conclude the bargain on his behalf has been held dealer and liable to tax.
10. In the case of Commissioner, Sales Tax v. Cooperative Marketing Society, Khaga, Fatehpur reported in 1975 UPTC 276, similar view has been taken by the Division Bench of this Court.
11. In the case of Indal Employees' Cooperative Society Ltd. v. State of Orissa reported in (1968) 22 STC 460, the Division Bench of Orissa High Court held the supply of goods by the Cooperative Society to its members is a sale, It has been held that even in the absence of a profit-motive an activity by a cooperative society of supplying goods to its members for a price may be in the nature of trade.
12. In the case of Commissioner of Sales Tax v. Ram Singh & sons reported in 1983 UPTC 563. learned Single Judge of this Court held that the supply of coal, regulated by the District Authorities, to the various coal depot for price is a sale.
13. It may mention here that the various decisions referred by the Tribunal in its order are not applicable to the present case, in view of the definition of the "dealer" under Section 2(c) of the Act. definition of the "business" under Section 2(aa) of the Act and the definition of "sale" under Section 2(h) of the Act referred hereinabove.
14. For the reasons stated above, order of the Tribunal is erroneous and is hereby set aside.
15. In the result, all the three revisions are allowed. Order of the Tribunal is set aside and the appeals filed by the Commissioner of Trade Tax before the Tribunal are allowed and the order of the assessing authority are restored.