Page 152 - GSTL_7th May 2020_Vol 36_Part 1

110 GST LAW TIMES [ Vol. 36
“business”. The activity of publishing and selling literature, books and oth-
er literature is obviously incidental or ancillary to the main activity of
spreading message of Saibaba and not to any business as such even without
profit-motive and it is in a way a means to achieve the object of the Trust
through which message of Saibaba is spread. It is clear from the trust deed
and objects contained therein that it was not established with an intention
of carrying on the business/occupation of selling or supplying goods. This
being the position, it cannot be said that the Trust carries on the business of
selling and supplying goods so as to fall within the meaning of “dealer”
under section 2(11) of the Act.
No doubt, the definition of “business” given in section 2(5A) of the
Act even without profit-motive is wide enough to include any trade, com-
merce or manufacture or any adventure or concern in the nature of trade,
commerce or manufacture and any transaction in connection with or inci-
dental or ancillary to the commencement or closure of such trade, com-
merce, manufacture, adventure or concern. If the main activity is not busi-
ness, then any transaction incidental or ancillary would not normally
amount to “business” unless an independent intention to carry on “busi-
ness” in the incidental or ancillary activity is established. In such cases, the
onus of proof of an independent intention to carry on “business” connected
with or incidental or ancillary sales will rest on the department. Thus, if the
main activity of a person is not trade, commerce, etc., ordinarily incidental
or ancillary activity may not come within the meaning of “business”.
17. It is respectfully submitted that even in the case of the applicant the
applicant does not have any intention of carrying out any “business”. The appli-
cant is a charitable trust established for activities relating to disaster prevention,
mitigation and management. All the contracts which are entered into by the ap-
plicant are for the achievement of such objectives. In fact majority of the contracts
are with Governments of different States. The applicant is duly registered under
Section 12AA as well as under Section 80G of the Income-tax Act, 1961. In such
facts and circumstances it is respectfully submitted that applicant is not liable for
registration or payment of tax under the GST Acts.
Judgments of Hon’ble High Courts supporting the submission of the applicant
18. The applicant further points out the below mentioned judgments of
various Hon’ble High Court which also support the submission that the appli-
cant is not liable for registration under the GST Acts :
(i) State of Tamil Nadu v. Cement Research Institute of India - 86 S.T.C. 124
(Mad.) : A research institute having the object of doing research and
scientific work, if sales goods manufactured in the course of re-
search, cannot be considered as having engaged in any commercial
activity. It is therefore concluded that it is not doing any business
and hence it is not liable to tax on sale proceeds of such goods.
(ii) State of Andhra Pradesh v. A.P. Housing Board - 70 S.T.C. 203 (A.P.) : A
housing board established by the State Government for framing and
executing housing schemes cannot be considered as a dealer en-
gaged in business of buying and selling goods and therefore it is not
liable to pay tax on sales of old unused forms and unserviceable ma-
terials.
(iii) Arulmigu Dhandayuthapani Swami Thirukkoil v. Commercial Tax Of-
ficer-II, Palani - 108 S.T.C. 114 (Mad.) : Temple carrying out puja of
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