Veeraswami, J.In the first of the petitions the propriety of levy of sales-tax on the sales by the Cosmopolitan Club of tiffins to its members arises. In Deputy Commercial Tax Officer, Triplicane Division, Mount Road, Madras and Another Vs. Cosmopolitan Club, , a Division Bench of this Court expressed the view that inasmuch as such sales were not in the course of business they were not taxable. The other aspect as to whether the Club being an incorporated body, the transactions could not be regarded as sales by the incorporated body to its members as contrasted with similar transactions between a non-incorporated proprietary or other types of clubs to their members was not specifically decided but left open. In view of this decision an Explanation to the definition of Dealer and another explanation to the definition of sale have since been incorporated. Under the Explanation the sales tailing with in its purview need not be in the course of business. The Explanation to the definition of dealer deems certain persons who sell not in the course of business to be dealers for purposes of the Act. In the course of arguments, in these petitions reliance is placed upon a decision of Mack J. in The Cosmopolitan Club, Madras Vs. The Deputy Commercial Tax Officer, Triplicane Division, Mt. Road, Madras and Another, , where the learned Judge held:

"A sale therefore must in the first place be a transfer of property in goods, I hold that the supply of refreshments in a members club such as this registered u/s 25 of the Companies Act, purchased out of club funds, composed of members subscription is not a transfer of property from the club as such to a member."

This point, as I said, was not specifically decided but left open by the Division Bench in the earlier case just referred to. But the learned Judges at the same time made certain observations which appear to support the view Mack J. took. The point is one of great importance and on first impressions, I must say, I find myself unable to agree with that view of Mack J. It is desirable, therefore, that the point is decided by a Division Bench. The papers in the three writ petitions will be placed before my Lord, the Chief Justice, far the purpose.

ORDER OF THE DIVISION BENCH

S. Ramachandra Iyer, C.J.

2. The Young Mens Indian Association is a society registered under the provisions of Act 21 of I860. It has for its object the improvement of the moral, physical and educational standards and the integration of the outlook of the students with a view to make them true citizens of our country. To achieve this object the Association has provided certain residential facilities for young men studying in the Metropolis, a library with a reading room and certain recreational facilities. Incidental thereto or even as a necessary adjunct, there is a mass and a canteen serving the needs of the members of the Association. Any member can bring a guest but the duration of his stay in the hostel or of enjoying the benefits or the cuisine is limited and restricted by the rules, the food, snacks and beverages taken by the guest is paid for by the member who brings him. The arrangement by which the members are charged for the food and refreshments is not a matter of controversy. The necessary articles for their preparation are purchased by the employees of the Association and their cost and expenses incurred for their preparation, inclusive of the salary of cooks, servers etc., are totalled up and divided among the members participating in the mess. No profit is made by the Association in providing this amenity to its members.

3. There was an attempt on the part of the Commercial tax department of the Government of Madras in respect of the years 1951-52 to 1953-54 to levy sales tax on the Association by treating the total amount of mess and canteen charges received by it from its members as its turnover. The Sales Tax Appellate Tribunal set aside the assessments on the ground of the transactions not being of a commercial nature. Madras Act 1 of 1959 introduced certain amendments to the Madras General Sales Tax Act, as a result of which a club or association can be regarded as a dealer, and the supply of refreshments by it to its members against payment, as a sale, even if such supply was not made in the course of any trade or business.

4. Conformably with the amended provisions of the Act, the Sales tax authorities proceeded to assess the aggregate amount received by the Association from its members to sales tax. The petitioner objected to the proposed levy on the ground that the amendments to Sections 2(g) and 2(n) of the Act is in so far as they made It a dealer and the transaction with its members, a sale, were ultra vires the Constitution, as by so doing the legislature has enabled a tax to be levied on transactions which are not sales within entry 54 in List II of Schedule VII of the Constitution. The Joint Commercial Tax Officer, Harbour Division in his order dated 5-2-1960, did not accept the contention. He determined the taxable turnover for the year 1959-60 in the sum of Rs. 1,47,457-28 nP. and levied a tax of Rs. 2940. On the following day, the officer by his letter Re. No. 966/59, called upon the Association to register itself as a dealer within six days there of, failing which he threatened the Association with penal proceedings. The Association did not waste any time. Even within the time limited in the letter stated above, it filed the two petitions now before us, the first for the issue of a writ of certiorari to quash the order of assessment to sales-tax made on 5-2-1960 by the respondent, the second far a similar or appropriate writ to quash the order tailing upon the Association to register itself as a dealer.

5. The merits of the case present no difficulty. From the uncontroverted facts set out above, the supply of articles of food by the Association to its members is not a commercial venture. It is not even one taken up by It as its own organised activity. What all has been made out, and this is very clear, is that the members of the Association utilise its services for their needs; in affect the Association is the agency utilised by the members for purchasing materials, preparing and supplying food, beaver ages etc. to themselves. The members divide amongst themselves the total expenses. That in respect of coffee, tiffin etc., a fixed payment is made is a mere mattes of convenience. Essentially, the matter is not different from the case of a number of persons in a family, purchasing jointly an article and later sharing the same among themselves. There is, and can be, no element of transfer of property in such a case from one to another. Similar reason should apply to the present case as well. Therefore the fact that the Association helps the members in the matter of the arrangement to run a common mess cannot make it the owner of the articles supplied to the members. It is at best an agent or mandatory whose services are utilised by the members for obtaining their needs. There can therefore, be no transfer of proper involved in the arrangement.

6. We have considered in a little detail the competence of the Madras Legislature to enact the amendment to Sections 2 (g) and 2 (n) of the Madras General Sales tax Act so as to comprehend a supply of goods by a club to its members in the judgment delivered this day in Cosmopolitan Club v. Jt. Commercial Tax Officer, Triplicane, W.P. No. 181 of 1960 (Mad). For the reasons stated therein, the impugned assessment in the present case must be held invalid.

7. The Act no doubt provides an appeal against such an assessment. It is now well established that notwithstanding the existence of a right conferred by a statute to an aggrieved person to appeal against the orders of tribunals constituted under it certiorari will lie. But the existence of such a right will be a matter to be taken into account by the superior Court in arriving at a conclusion whether it should issue a writ of certiorari, for that Jurisdiction is a discretionary one; (State of U.P. v. Md. Nooh, 1958 SCJ 242 [LQ/SC/1957/99] : AIR 1958 SC 86 [LQ/SC/1957/99] ).

8. We felt considerable doubt whether we could, In the circumstances of the present case, exercise our discretionary jurisdiction under Article 226 in favour of the petitioner who has a statutory remedy by way of appeal and of ultimate resort to this Court by way of revision under the provisions of the Act. But there are certain circumstances which compel us to exercise our power, the main or only case of the petitioner is that the explanations to Sections 2 (g) and 2 (n) of the Act are invalid. There is no controversy about the facts, figures or rate of tax etc. The question of constitutional validity of Sections 2 (g) and 2 (n) of the Act is not capable of being determined completely or satisfactorily by the department or the tribunal. Therefore an appeal to them can, at best, be only a stage in a matter which has ultimately to come up before this Court. Secondly, the alleged turnover of Rs. 1,47,457.28 represents the expenses Incurred and shared by the then members who might not all be members of the Association now. It will therefore not be possible for the Association to effectively call upon the former members to share the tax, which, as we have found, has been illegally levied.

Then there is also the important circumstances that the question before us does not entirely depend on the validity of the assessment in respect of which it can tie said there is an alternative remedy by way of appeal. The respondent has called upon the Association to register self as a dealer on threat of penal proceedings. The Association which can in no sense be regarded as a dealer is entitled to come to this Court under Article 226 for the protection against the threatened invasion of its rights. The need to grant relief in W. P. No. 130 of 1960 necessarily involves an investigation into the validity of the assessment. It is true that the subsequent order is dependent on the order of assessment; but there exists no absolute right in the petitioner to have its operation stayed pending an appeal that it might file against the assessment. It must be observed that the petitioner has sought relief with great promptitude and that this is not one of: those cases where a litigant, after allowing the period of limitation prescribed for an appeal to pass by, resorts to proceedings under Article 226. We are satisfied that in the circumstances of this case, there are sufficient grounds for the exercise of our jurisdiction, notwithstanding the existence of an alternative remedy under the Madras General Sales Tax Act. The rule will be made absolute. No order as to costs.

9. W. P. No. 181 of 1960 : This is a petition filed under Article 226 of the Constitution by the Cosmopolitan Club, Madras, for the issue of a writ of Mandamus against the Joint Commercial Tax Officer, Triplicane Division to forbear from levying on the club sales tax on the turnover relating to sales of refreshments supplied by it to its members. The Cosmopolitan Club, Madras, is a social recreation club, started originally in the year 1873, as an unincorporated association. Long afterwards in the year 1934, it was registered u/s 26 of the Indian Companies Act as a non-profit earning institution. The club has at present a strength of about 1500 members. Its object as disclosed in the Memorandum of Association is mainly to promote and facilitate social intercourse, discussions amongst its members etc. for whose benefit it maintains a library of literary, historical and political books. The Articles of Association show that the members for the time being only constitute the club. There are provisions for resignation by the members and also for cessation of membership. Incidental to its above purposes the club maintains an establishment for preparing and supplying to its members refreshments. The articles necessary therefore are purchased by the Club in the market. The preparations are made within its precincts at the direction of a Committee, and they are supplied to the members at a price fixed by the Committee. In his judgment in The Cosmopolitan Club, Madras Vs. The Deputy Commercial Tax Officer, Triplicane Division, Mt. Road, Madras and Another, , Mack J. has described the object of the club in his felicitous way thus:

"The Articles and Memorandum of Association of the Cosmopolitan Club Ext. P-l said to be based on those of the Eccentric Club London is that of a social or members club, not conducted for gain or profit, but with the objective of providing amenities to its members for meeting in the Club premises, for recreative and social activities varying from strenuous games to pastimes of less vigorous character, for social intercourse for interchange of ideas on a variety of topics serious and light, ranging from Ethics and Philosophy to the prattle of idle gossip. I can take judicial notice of the necessity to sustain and refresh members of a club indulging in these generally whole some, social and recreative activities by a supply of refreshments, both liquid and solid."

10. A member is allowed to bring guests with him. But the club only charges the member who introduces the guest for the article of food consumed by his guest.

11. The State of Madras had been charging sales tax on the turnover of such sales of refreshments by the club to its members under the provisions of the Madras General Sales Tax Act, 1939, (hereinafter referred to as the Act). In the year 1949 the club approached the Government for exemption from, liability to tax; but on the latter refusing to grant the exemption, the club filed an application to this Court for the issue of a writ of certiorari and mandamus, to quash the order of the Government declining the exemption and to direct them to forbear from collecting the sales tax. The main controversy in the case centred round the definition of the term "dealer" on whom Section 3 of the Act casts the liability for the tax, it being the contention of the club that it was not a dealer. Dealer was defined under the Act as originally enacted as "any person who carries on the business of buying or selling goods". Under the Explanation thereto a co-operative society, a club, a firm, or any association which sells goods to its members was a dealer within the meaning of the clause. Mack J. before whom the petitions came up for disposal accepted the contention of the Club and held that the supply of refreshments by it to its members would not constitute a sale, that consequently the club would not be a dealer within the meaning of Section 3 of the Act, and that the levy of sales tax was therefore illegal. The learned Judge accordingly issued a writ of mandamus directing the Government not to levy sale tax on the disputed turnover. The other application for the issue of a writ of certiorari was dismissed. The judgment of the learned Judge is reported in The Cosmopolitan Club, Madras Vs. The Deputy Commercial Tax Officer, Triplicane Division, Mt. Road, Madras and Another, .

12. The State preferred an appeal against that Judgment and it was heard by Balakrishna Aiyar and Rajagopala Aiyangar, JJ. the judgment In the appeal being reported in Gummadi Appayya and Others Vs. Gavini Venkataratnam, . The learned Judges sustained the judgment of the trial Judge on the ground that there could be no transaction of sale if the supply was not done in the course of any business carried on by the club. Analysing the distinctive elements of a sale, the learned Judges held that there should be present in the transaction the following three elements:

(1) Transfer of property in the goods; (2) such transfer must be in the course of trade, and (3) such transfer must be for valuable consideration. As it was found that the club had no, commercial object, that is, a profit motive, in its transaction of preparing and selling refreshments to its members albeit against payment, the learned Judges held that the second of the three conditions referred to above was not present in the case and that therefore there was no sale which could attract the tax under the Act. Mack J. had expressed further the view that the first of the three elements of sale was also not present in the case as the club must be deemed to have acted in supplying to its members as the agent of the members and there could therefore be no element of sale involved in the process.

The learned Judges on appeal while recognising the possibility of a corporate entity like the Cosmopolitan Club owning and passing the_ property of the club to its members, did not finally decide the question whether the supply of refreshments by a non-proprietary incorporated club to its members would amount to a sale or not. A View similar to the one above has been taken by a Bench bf the Nagpur High Court (Madhya Pradesh ) in Bengal Nagpur Cotton Mills Club, Rajnandgaon v. Sales Tax Officer, Raipur, 1957 8 STC 781. [LQ/MPHC/1957/191] That case concerned the interpretation of the provisions of the term "sale" in the Central Provinces and Berar Sales Tax Act which did not contain the words "in the course of trade or business" which distinguished the definition of the term "sale" in the Madras Act. But it was nevertheless held that the mere absence of those words would not avoid the principle enunciated in the decision referred to above and that the supply to the members of a members club, although such club had been registered u/s 26 of the Companies Act, of refreshments purchased out of the clubs funds, would not amount to a transfer of property from the club to the member concerned and that the club therefore would not be liable to sales tax. Subsequent to the appellate judgment referred to above, the Madras State Legislature enacted Act 1 of 1959 introducing certain amendments to the Act, the evident object being to bring transactions of the kind referred to above within the ambit of the Act. This was sought to be achieved by altering the terms of the definition of the terms "dealer" and "sale"

It will be convenient to set out here the two definitions :

"2 (g) dealer means any person who carries on the business of buying, selling, supplying or distributing goods, directly or otherwise, whether for cash, or for deferred payment, or for commission, remuneration or other valuable consideration, and includes......

Explanation: A society (including a co-operative society), club or firm or an association 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 ether valuable consideration, shall be deemed to be a dealer for file purposes of this Act."

"2 (n) Sale with all its grammatical variations end cognate expressions means every transfer of the property in goods by one person to another in the course of business for cash or for deferred payment or other valuable consideration but does not include a mortgage, hypothecation, charge or pledge.

Explanation: (1) The transfer of property involved in the supply or distribution of goods by a society (including a co-operative society), club, firm, or any association to its. members, for cash, or for deferred payment, or other valuable consideration, whether or not in the course of business shall be deemed to be a sale for the purpose of this Act."

The definition of the term sale is not, however, very happy. For example, the explanation refers to the transfer of property involved in the distribution of goods by a club to its members. But if it were to be held that there could be no transfer at all in such a case, the definition of the term sale cannot take in the transaction referred to in the explanation.

13. It is however apparent from the terms of the explanation that the second of the three requirements of a sale mentioned in the Judgment of this Court in Deputy Commercial Tax Officer, Triplicane Division, Mount Road, Madras and Another Vs. Cosmopolitan Club, , namely, its commercial aspect has been done away with in respect of clubs, associations etc. According to the explanation, it will be sufficient to attract the tax, if there were a transfer of property for a price, there being no other qualification for such a transfer being effected in the course of business. This is in sharp contrast with the main part. of the definition which requires the sale to be one in the course of business. There is also a similar difference in the definition of the term "dealer". In other words, while in the case of an ordinary person, which will include a company, there will be no liability to sales tax unless the sales effected by him are in the course of trade, no such qualification apart from what we shall refer to later is imposed in regard to sales by clubs and other agencies coming within the terms of the explanation. There is however one apparent difficulty In the definition, namely, whether an incorporated club having a legal existence of its own would come under the main part of the section or would only come within the explanation thereof. Again it is obvious that the legislature could not have intended that every casual sale by a club to its members of its property should come within the explanation.

14. Mr. V. Thyagarajan, who appears for the club, has contended that the purchase of the articles of food, the subsequent preparation and supply of refreshments by the club to its members albeit against payment is essentially one of service to its members and can in no sense be regarded as a sale. For one thing there is such an identity between the Club and the member who is supplied with refreshments, that there can be no transfer of property. Secondly, that even if one wore to assume the Cosmopolitan club as a distinct entity from its members, it must be field to have acted as either the agent or mandatory of its members in providing them with refreshments and obtaining therefore their value. Following this submission it is contended that the fiction created by the explanation to Sections 2(g) and 2(n) of the Act would be ultra vires of the powers of the State Legislature as it brings into the category of sales, transactions which in law are not sales. It was also argued that even if the Explanation to Sections 2(g) and 2(n) are held to be intra vires, the Cosmopolitan club being an incorporated one, would have a persona of its own and will come under the man part of the definition of the term "dealer" and of the term "sale," and that therefore unless the transactions were done in the course of trade, which they were not, there would be no liability to tax. There was also a contention that the terms of the Explanation discriminate clubs, firms and other associations from other persons and that they are therefore void under Article 14 of the Constitution.

15. We shall first consider whether the Explanations to Sections 2(g) and 2(n) are ultra vires of the State Legislature for the reason that they enable the State Legislature to tax transactions which are not really sales and therefore fall outside the ambit of its legislative power under the Constitution. The Explanations to which we have made reference deem a club a dealer and the transaction, a sale, whether or not the distribution of the goods to the members takes place in the course of trade. Section 3 of the Act brings to charge the turnover of every dealer, the expression turnover meaning the aggregate amount for which the goods are brought or sold. The Explanations referred to create therefore a fiction by which the concept of the word "sale" is extended so as to include a transaction which properly speaking would not amount to a sale. The legislature must have obviously realised that the institutions referred to in the Explanation would not come within the main part of the too definitions and therefore created a legal fiction by the use of the word "deem". A person or thing can be deemed to be something else only, if it is not in reality that being. Referring to the meaning of the word "deem" when used in a statute Cave J. observed in R. v. Norfolk County Council, (1891) 60 LJ QB 379

"Generally speaking when you talk of a thing being deemed to be something, you do not mean to say that it is that which it is deemed to be. It is rather the admission that it is not what it is deemed to be and that notwithstanding it is not that particular thing.......... Nevertheless it is deemed to be that thing."

It would follow that in reality distribution by a club to its members of goods will not be a sale within the meaning of the Act, but it is deemed to be such by virtue of the operation of the word "deemed" in the Ex-planations to Sections 2(g) and 2(n) of the Act. Ordinarily, speaking there can be no limit to the creation of a fiction in a statute by a Sovereign Parliament. But where the legislative authority is limited or circumscribed as for example by the Constitution, a fiction which has the effect of extending the scope of an enactment so as to transgress the Constitutional limits must obviously be invalid, for no legislature can do that by enacting a fiction which it cannot do directly. In other words, if the effect of the deeming provision in the Explanations referred to above were to bring to tax, transactions which are not sales, the provision will be invalid as beyond the powers of the State Legislature. In order to determine whether a legislation which brings to tax transactions which are not sales is intra vires or not, we have to consider the scope of the authority of the concerned legislature under the Constitution.

16. Madras Act I of 1959 which introduced the amendment was enacted after the Constitution came into force. The main Act itself was enacted prior to the Constitution. The power of the State Legislature to levy tax on sales of goods is contained in Article 246 of the Constitution which states that the legislature of any State shall have power to make laws in respect of any of the matters enumerated in list II to the Seventh Schedule to the Constitution. Item 54 in that list says "Taxes on the sale or purchase of goods other than newspapers". This entry corresponds to item 48 in list II to the Seventh Schedule of Government of India Act, 1935, and it is identical with it except that the latter did not contain the words "other than newspapers". The two entries referred to above authorise a State Legislature to impose a tax either on the sale or on the purchase of goods. That would show that no tax can be imposed unless there has been a transaction of sale, namely, a transfer of property in the goods from one person to another for a price. Thus there is no constitutional restriction as to the levy of sales tax even on casual sales but it is essential that the legislation should impose tax. only on sales and not on other transactions.

17. The learned Advocate General contends, and in our opinion, rightly, that in interpreting a Constitutional entry conferring legislative powers, particularly taxation powers, the widest possible meaning should be given to the entry. It can also be accepted that within the topic or topics covered by the entry, the fullest sovereign powers must be held to have been given to the legislature. The legislature can therefore enact laws within the scope of an entry and create for the purpose of bringing certain persons or things within the ambit of such laws the necessary fiction. But it is obvious that fictions cannot achieve what direct enumeration cannot do under the powers vested by the Constitution. If, therefore, the term "sale" in item 54 of list II of the Seventh Schedule to the Constitution cannot include a release by a trustee in favour of the beneficiary or the transfer by an agent to his principal of the property of the latter, a fiction making such transactions to come within the meaning of the term "sale" cannot obviously be valid as the fiction would have the effect of enlarging the scope of the statute beyond the limits imposed by the Constitution.

18. But the learned Advocate General contends that as a member of an unincorporated club or even a member of an incorporated one who is in the position of a beneficiary does not have complete title to the property of the club, the transaction by which the club makes over its property to its member for a price should be regarded as a sale coming within the ambit of entry 54. In support of the contention reliance is placed upon certain well known principles recognised in the interpretation of a Constitutional provision. It is suggested that in order to ascertain the true meaning of the words "sale of goods" the meaning of the term at the time the Constitution was passed should be looked into and in the light of the previous legislative practice and subject to the provisions of the Constitution itself.

19. The first of the cases relied on was (1948) 16 ITR 240 (Privy Council) where the Privy Council observed:

"Where Parliament has conferred a power to legislate on a particular topic it is permissible and important in determining the scope and meaning of the power to have regard to what is ordinarily treated as embraced within that topic in the legislative practice of the United Kingdom (See Croft v. Dunphy, 1933 AC 156 : AIR 1933 PC 16 [LQ/PC/1932/59] ). The point of the reference is emphatically not to seek a pattern to which a due exercise of the power must conform. The object is to ascertain the general conception involved in the words used in the enabling Act."

It would follow from the above that the true meaning of the term "sale of goods" will have to be found in what is ordinarily known and comprehended within the meaning of those words.

20. It cannot be disputed that while interpreting the provisions of entries in our Constitution, reference can be made to the corresponding entry in the Government on India Act, 1935, Vide The Sales Tax Officer, Pilibhit Vs. Budh Prakash Jai Prakash, . The learned Advocate General drew also our attention in this connection to the decision of the Privy Council in 1193 AC 156 : AIR 1933 PC 16 [LQ/PC/1932/59] , where Lord Macmillan observed at page 165 (of App Cas) : (at p. 19 of AIR):

"When a power is conferred to legislate on a particular topic it is important, in determining the scope for the power, to have regard to what is ordinarily treated as embraced within that topic in legislative practice and particularly in the legislative practice of the State which has conferred the power. Thus in considering what might be appropriately and legitimately enacted by the Dominion Parliament under its power to legislate "to bankruptcy and Insolvency", it was considered relevant to discuss the usual contents of bankruptcy statutes."

In Weavers "Constitutional Law and its Administration" the principles observed in interpreting the American Constitution are stated thus at page 77:

"In interpreting the Constitution, recourse, may Be had to the common law of England in force in the United States at the time of the Revolution. Many principles of Government were adopted directly from this source and It has been presumed that the statesmen who wrote the Constitution adopted these principles with the fixed technical meaning they had acquired in legal and constitutional history. "The interpretation of the Constitution" said Justice Brever is necessarily influenced by the fact that Its provisions are framed in the language of the English common law, and are to be read in the light of its history." To which statement Chief Justice Taft has, added :

"The language of the Constitution cannot be interpreted safely except by reference to the common law and to British institutions as they were when the instrument was framed and adopted. The statesmen and lawyers of the convention, who submitted it to ratification of the conventions of the thirteen States, were born and brought up In the atmosphere of the common law, and thought and spoke its vocabulary."

It is needless now to examine how far these principles would justify an interpretation that the term sale would comprehend a release etc. as Supreme Court has laid down in unmistakable terms the rules that should guide us in interpreting the words "sale of goods" occurring in entry 54 in list II to Sch. VII in The State of Madras Vs. Gannon Dunkerley and Co., (Madras) Ltd., . The Supreme Court has pointed out that prior to the Government of India Act, 1935, there was no legislative practice in this country or in England relating to sales tax; but as the topic enumerated is tax on sale of goods, the real question will be the true import of the expression "sale of goods" and that that expression Should have the meaning which it had in the Common law of England relating to sale of goods. Referring to entry 48 in List II of the Seventh Schedule in the Government of India Act, 1935 which for the first time empowered the legislation on the topic of tax on sale of goods, the Supreme Court observed:

"We think that the true legislative intent is that the expression sale of goods in entry 48 should bear the precise and definite meaning it has in law, and that meaning should not be left to fluctuate with the definition of sale in laws relating to sale of goods which might be in force for the time being."

Adverting to this matter later at page 377 (of STC) : (at p. 573 of AIR), their Lordships said :

"If the words sale of goods have to be interpreted In their legal sense, that sense can only be that it has in the law relating to sale of goods. The ratio of the rule of interpretation that words of legal import occurring In a statute should be construed in their legal sense is that those words have, in law, acquired a definite and precise sense, and that, accordingly, the legislature must be taken to have intended that they should be understood in that sense. In interpreting an expression used in a legal sense, therefore, we have only to ascertain the precise connotation which it possesses in law."

The decision of the Supreme Court referred to above which held that in a building contract which was one entire and indivisible, there could be no sale of goods as one essential element of sale, namely, a bargain between the parties with respect to the transfer of property was lacking, affirmed the judgment of this Court in Gannon Dunkerley and Co. (Madras) Ltd. v. State of Madras, 1954 5 STC 216 : AIR 1954 Mad 1130 [LQ/MadHC/1954/135] , where Satyanarayana Rao, J. delivering the judgment of the Bench observed while construing entry 48 of list II of Sch. VII of the Government of India Act, 1935:

"It must be remembered that the Constitution Act was enacted by the British Parliament and the draftsmen and the Parliament must have been well aware that the expression sale of goods had acquired a legal import by that time, and it is legitimate therefore to presume that the expression was used in the sense in which it was understood by the English lawyers and also in India. The draftsmen must have intended to define the power of the legislature to tax only the transaction of sale of goods, which was. understood in law as meaning and as constituting those composite series of acts beginning with an agreement of sale and ending with transfer of property for a price, which constitute sale of goods."

We have therefore to look to the ordinary legal concept of the term sale of goods. Under the English Common law in order to constitute a valid sale four elements are necessary. Benjamin in his work on Sale of Goods, 8th Edn. dealing with the matter observes at page 2 :

"Hence it follows that, to constitute a valid sale, there must be a concurrence of the following elements, viz., (1) Parties competent to contract; (2) mutual consent; (3) a thing, the absolute or general property in which is transferred from the seller to the buyer; and (4) a price in money paid or promised."

In The State of Madras Vs. Gannon Dunkerley and Co., (Madras) Ltd., , the second of the four elements stated above was lacking as there was no agreement to sell, between the person who granted the building contract and the one who was to perform it, any of the component parts employed in the building; it was held that there could be no sale and the legislature which enacted the provision deeming such a contract to be a sale acted ultra vires of its powers.

21. In the present case it is argued that the third of the constituent elements of the sale set out above is wanting, namely, that the refreshments which were supplied to the members by the club were not the absolute property of the club which could be held to have been transferred by it to its member and that the principle recognised in The State of Madras Vs. Gannon Dunkerley and Co., (Madras) Ltd., , would equally apply.

22. That where one of the several elements which constitute a sale is lacking, the State Legislature would be incompetent to levy tax by a deeming provision, has been held in a number of cases. We shall refer to a few of them presently. But before we do so, it is necessary to reiterate what we have stated earlier, namely, that the expression sale of goods occurring in entry 54 of list II of Sch. VII of the Constitution is a composite expression having a definite meaning involving the existence of the four elements stated above and that there can be no sale of goods unless all the component elements are present.

23. In Poppatlal Shah Vs. The State of Madras, the Supreme Court dealing with the several elements in the conception of the word sale said.

"Thus, there are the elements of a bargain or contract of sale, the payment or promise of payment of price, the delivery of goods and the actual passing of title, and each one of them is essential to a transaction of sale."

24. In Bharat Sabaigrass Ltd. Vs. The Collector of Commercial Taxes, the Orissa High Court while construing the meaning of the word "sale" occurring in the Sales-Tax legislation of that State held that the word could not tie made wider than what it meant under the Government of India Act, 1935, i.e., a completed transaction involving a transference of interest. In that case there was an attempt to levy tax on a mere contract for sale entered into in that State on the footing that a contract of sale was deemed to be a sale under the definition section in the enactment. The learned Judges observed:

"There seems to be enough force in the contention that a mere contract for sale cannot constitute a sale. It being executry in character, pure and simple, no property or ownership passes Under it. The sale, on the other hand, is an executed contract where complete ownership passes."

it would be apparent from the above that unless there is transfer of property from one to another, there can fee no sale, and a statute which enacts a fiction so as Jo bring a transaction of that kind within the ambit of its taxation provision, would be ultra vires.

25. This question, namely, whether by enlarging the definition of the term sale so as to include mere contracts of sale, the State legislature can impose a tax, came up for consideration before the Supreme Court in The Sales Tax Officer, Pilibhit Vs. Budh Prakash Jai Prakash, . That case concerned with the definition of the term sale in the U. P. Sales-tax Act, 1948. Section 2(h) of that enactment defined sale as including forward contracts. The Supreme Court held that liability to be assessed to sales-tax can arise only if there wore a completed sale and not when there was merely an agreement to sell, which can only result in a claim for damages, and not in the passing of property, and that the power conferred under entry 48 in list II of Sch. VII of the Government of India Act, 1935 to impose a tax on sale of goods could be exercised only when there was a sale under which a transfer of property in the goods took place. The provisions of Section 2(h) to the extent they included the forward contracts were held to be ultra vires the Legislature.

26. We have earlier referred to the decision in The State of Madras Vs. Gannon Dunkerley and Co., (Madras) Ltd., , which declared void a provision in the Madras General Sales-Tax Act which enlarged the definition of the word sale so as to include a transfer of property in goods involved in the execution of works contracts.

27. It will follow from the principle accepted in the decisions stated above, that it will not be open to the legislature to make a transaction which is not a sale, a sale by a statutory fiction and impose a tax thereon. To be more precise, if the element of transfer of property is lacking in any transaction, there can be no sale and the legislature cannot by treating it as a sale by a deeming clause proceed to bring it within the ambit of the taxing statute.

28. It has therefore to be seen whether there can be said to be a sale when an incorporated club prepares refreshments by investing its monies in the first instance and recouping the same from, the members to whom the products are supplied. The consideration of this question will depend upon the precise relationship between the club and its members.

29. A club is an association of persons united by some common interest, meeting periodically for conviviality, relaxation and social intercourse. In Halsburys Laws of England, 3rd Edn. Vol. 5 page 252, a club has been defined as

"a society of persons associated together for social intercourse, for the promotion of politics, sport, art, science, or literature, or for any purpose except the acquisition of gains."

Though in this country there have always existed literary, cultural and philosophical associations, men generally found relaxation in his family, and clubs are more or less a foreign concept. For a true understanding of the character of such an institution and its relation to its members, it is therefore necessary to study its features in the country of its origin.

30. In England there are five different kinds of clubs, namely, (1) unincorporated members club; (2) unincorporated proprietary clubs; (3) clubs incorporated under the Companies Act; (4) working mens clubs registered under the Friendly Societies Act; and (5) shop clubs. It will be necessary for the purpose of understanding the cases to which we have to refer hereafter to know something about the first three types of clubs,

31. An unincorporated members club is a society of persons each of whom contributes to the fund out of which the expenses of conducting the society are paid. But such club not being a partnership or a legal entity, can neither sue nor be sued in the club name, unless the property of the club is vested in trustees. The club property will be the property of all the members for the time being. But the property being devoted for the purpose of the club, the individual interest of the members therein will become capable of realisation only upon dissolution. Till then the members will have only a right to use the club premises and enjoy the privileges of the society, in accordance with the rules, so long as they pay the subscriptions. The rights and duties of the members of such a club as between themselves will depend on the rules (vide Halsburys Laws of England, 3rd Edn. Vol. V, pages 253-4).

32. An unincorporated proprietary club is one where the property and the funds of the club are owned not by the members but by some other person. It will be open to the person owning the club to conduct it with a view to earn profits. The members will be entitled to use the club property as licensees under the terms of the contract between themselves and the owner of the club. The right of the members is purely personal and contractual. It may also happen that the proprietor of such a club is an incorporated company. It is not necessary in such a case that the members of the company should be members of the club.

33. An incorporated members club retains the characteristics of an unincorporated members club and at the same time, being incorporated under the Companies Act, would obtain the advantage of suing and being sued as a legal entity independent of its individual members. As a members club is not one run with a view to earning profits, the convenient method adopted is to register the club as a company limited by guarantee, the members for the time being constituting the shareholders of the company. Section 26 of the Indian Companies Act 1913, (which corresponds to the present Section 25) enables the associations run not for profit like a club to be registered as a company. On such registration the club acquires the status of a legal entity.

34. The true relationship between a club and its members came up for consideration in England with respect to licensing provisions under the Liquor Licensing Laws. The Licensing Act in that country prohibited the sale of liquor in unregistered clubs. Questions arose whether the supply of intoxicating liquor by an unregistered club to its members amounted to a sale. Briefly stated the consensus of opinion in England appears to be, that supply for a price by a bona fide members club to its members of intoxicating liquor will not contravene the provisions of the Licensing Act, as the transaction does not constitute a sale by retail within the meaning of the Act but is one in the nature of a release by the members of their shares in the property supplied. This was held to be the case even in the case of an incorporated members club. But that principle was however not applied in the case of a proprietary club inasmuch as the members would have no interest in the property which belonged to the proprietor (be it a company or an individual), the supply by the latter constituting a sale and unless the premises were duly licensed, there would be a contravention of the Act.

35. The leading case on the subject is Graff v. Evans, 1882 8 QBD 373. In that case the manager of a bona fide unincorporated members club was prosecuted for selling by retail intoxicating liquor without a proper licence under the Licensing Act, 1872. The club property was by the rules vested in certain trustees. There was a Committee of Management, which was in control of the general business of the club. The liquor was purchased by : the club and was supplied at a fixed percentage above the cost price to its members. The learned Judges held that there was no sale at all in the case, rigid J. observed :

"The question here, is, did Graff, the manager, who supplied the liquors to Foster, effect a sale by retail I think not. I think Foster was an owner of the property together with all the other members of the club. Any member was entitled to obtain the goods on payment of the price. A sale involves the element of a bargain. There was no bargain here, nor any contract with Graff with respect to the goods. Foster was acting upon his rights as a member of the club, not by reason of any new contract, but under his old contract of association by which he subscribed a sum to the funds of the club, and be-, came entitled to have ale and whisky supplied to him as a member at a certain price. I cannot conceive it possible that Graff could have sued him for the pries as the price of goods sold and delivered. There was no contract between two persons, because Foster was vendor s& well as buyer. Taking the transaction to be a purchase by Foster of all the other members shares in the goods, Foster was as much a co-owner as the vendor. I think it was a transfer of a special property in the goods to Foster, which was not a sale within the meaning of the section."

36. This decision was followed in Metford v. Edwards, 1915 1 KB 172, where the question arose whether there was a sale by reason of supply of liquor to the members of a working mens club which had been registered under the Friendly Societies Act, 1896. It was held that there was no sale.

37. The position then will be that the supply of liquor by a members club to its members is a mere mode of distributing the common property, and not a sale of liquor by the club to its members so as to attract the licensing laws. It will be analogous to a case of several people combining together ordering for goods an joint account and arranging between themselves the proportion in which they should pay for it or the proportion; in which they should consume the same. The purchase in such a case would be a joint purchase of all those who contributed money and a distribution between them can only be termed a partition and not a sale. This principle applicable to members clubs has been held to be equally applicable to a case where the property is vested in for purposes of convenience in trustees. That was the case in (1882) 8 QBD 373.

38. Channell, J. in National Sporting Clubs v. Cope, (1900) 82 LT 352 observed:

"Then it has further been held that that being the principle applicable to members clubs, it is not altered by the fact that the property is vested for purposes of convenience in trustees. In the case where it is so vested, the property is of course in those trustees. In one sense members clubs have no legal property in excisable articles. But they have an interest in them. Whether one may properly call it equitable interest I really do not know. But it does not matter. The interest they have is treated just the same as if it were legal property. It is so to all intents and purposes. The sale of it amongst the members is treated as being a mere distribution of property in which they have common interest, although the legal ownership is vested in the trustees."

The learned Judge was also inclined to the view that where the members of the club have been incorporated into a simple corporation consisting solely and entirely of the members of the club, the principles underlying distribution of property in an unincorporated members club would apply to that case as well.

39. That aspect of the matter came up finally for consideration in Trebanog Working Mens Club and Institute Ltd. v. Macdonald, 1940 1 KB 576 where a question arose whether the supply of liquor by an incorporated members club to its members on payment contravened the provisions of the Licensing Act. It was recognised that an incorporated club was a legal entity distinct from its members but notwithstanding it, when the club supplied liquor to its members it could not be regarded as effecting a sale, but it rather acted as the agent or trustees of the members. Lord Howart C. J. who was of opinion that the purchase of excisable articles for use of the club was made by its committee on behalf of its members, stated the legal position thus:

"In our opinion, the decision in (1882) 8 QBD 373 applies to and governs the present case. Once it is conceded that a members club does not necessarily require a licence to serve its members with intoxicating liquor, because the legal property in the liquor is not in the members themselves, it is difficult to draw any legal distinction between the various legal entities that may be entrusted with the duty of holding the property on behalf of the members, be it an individual, or a body of trustees, or a company formed for the purpose, so long as the real interest in the liquors remains, as in this case it clearly does, in the members of the club. There is no magic in this connection in the expressions trustee or agent. What is essential is that the holding of the property by the agent or trustee must be a holding for and on behalf of, and not a holding antagonistic to, the members of the club."

From the decisions referred to above it is clear, that so long as no outsider has an interest in an incorporated club which runs only for its members, there is an identity of interest between the club and the members. The club may. be a juristic entity capable of holding property. But when it purchases articles for the consumption of its members and supplies the same to them against payment, no element of sale is involved in the transaction as the club should be regarded only as holding the property for the benefit of its members and releasing the same when required to do so. Therefore the distinction between an unincorporated members club and an incorporated one is this. In the former case the distribution made by the club is to one of its members is a release by all the members in favour of a joint owner who takes the goods. In the case of an incorporated club which; exists only for the purpose of providing amenities to its members, the supply of articles by it to a member will tantamount to delivery by an agent or trustee to the principal or beneficiary. In such a case also there will be no transfer of ownership by a person absolutely entitled to the property to the one who acquires title to the property on such transfer.

40. If these principles are to be accepted there can be no sale involved in the supply of refreshments by the Cosmopolitan Club, Madras, to its members, as it is conceded that it is pi/rely a members club.

41. The learned Advocate General, however, contends that the rule laid down by the English cases should not be followed in this country for three reasons: (1) that the decisions referred to above were rendered in prosecutions under the Licensing Acts and were mainly the result of the principle of stare diesis; (2) that sufficient importance had not been given in the decisions to the distinct legal personality of an incorporated club; and (3) that the decisions are opposed to the principles recognised in English and Scottish Joint Co-operative Wholesale Society Ltd. v. Commissioner of Agricultural Income Tax, Assam, 1948 AC 405.

42. We see no force in the first of the three reasons set out above. The English decisions to-which we have made reference earlier proceed not on any rule of construction of a penal statute or even on the application of the rule of benefit of doubt, but on the vital aspect of the relationship of the club to its members and the character of the transaction involved in the supply in a members club of goods to the members. We agree with regard to. the following observation of Mack J. in 1952 1 MLJ

"Underlying them all, there is the basic legal principle that a purely members cub which makes purchases, through a secretary or manager and supplies requirements to members at a fixed rate does not in law sell these goods but merely distributes them, all the essential elements of a sale in the transaction being wanting."

As pointed out in the appellate judgment, the decisions of the English Courts have remained in force for several years and in out opinion they should apply to cases in our country particularly for the reasons that clubs themselves are modelled on the English pattern.

43. The second line of argument adopted by the learned Advocate-General is that a club (whether incorporated or otherwise) in its true concept should not be treated as identical with its members and that as a substratum at least of the property in the goeds remained with the club, any transfer of that property to the member would involve a sale. In this connection the learned. Advocate-General invited our attention to the decisions in Boppana Rukminamma and Another Vs. Maganti Venkata Ramadas, and Satyavart Sidhantalankar Vs. The Arya Samaj, , which held that a society registered under a Societies Registration Act was a legal entity having a persona of its own and he argued, by way of analogy that a club as such will have a limited, legal existence of its own which would make it competent to sell its goods to its members.

44. Reference is then made to National Union of General and Municipal Workers v. Gillian, 1946 KB 81 where it has been held that a trade union could in general maintain an action in tort, although a registered trade union unlike its counterpart in this country is neither a natural person nor a corporation. In Bonsor v. Musicians Union, 195S AC 104, such a union has been styled "a near corporation". It is therefore argued that a club particularly an incorporated one, is a legal entity capable of holding and transmitting property, and that therefore, in a club the supply of refreshments to individual members by it can only be a sale of the property, as a club cannot be deemed to be the agent of each and every single member although it might be the agent of all of them put together. Pursuing this line it was further agreed that the English decisions referred to above should be held to be inconsistent with the decision of the Privy. Council in 1948 AC 405. In that case the appellant was an incorporated company carrying on business as planters growers and merchants of tea. The appellant company had only two members both of them co-operative societies. The appellant owned a tea estate in Assam. Each year the two co-operative societies, (members of the appellant society) advanced certain sums of money to the. society towards the cost of tea to be supplied to them. The tea was supplied later to them and the cost at the, market price was debited against them. There was thus a supply by the appellant of the tea grown by it only to its members and to no outsider.

The Assam Government levied tax under the provisions of the Agricultural Income Tax Act 1939. The appellant contested its liability on the ground that it was a mutual society by which all the surplus profits went only to the members and there was thus no profit made by the company for the levy of Income Tax. The Privy Council held that no matter who the purchasers might be, the society had sold the tea grown and manufactured by it at a profit, and it having earned profits, the provisions of the taxing enactment would apply. The decision undoubtedly proceeds on the basis of the well understood rule of law that a company is distinct from its shareholders. In order to better appreciate that case, it is necessary to digress a little and refer to the law regulating the levy of Income Tax with respect to mutual societies, which the appellant claimed to be and which claim was respected. In a mutual society e.g., a mutual insurance association, the surplus goes back to the members viz., (insured persons); in effect it amounts to a return of his own money which the member had overpaid. In other words in such association, persons who make contributions receive back a proportionate part of their contribution, if there is a surplus after meeting the liabilities of the association. There is thus a complete identity between the contributors and the recipients of the surplus, the mutual association serving as an agency for a purpose, not itself making any profit.

In New York Life Insurance Co. v. Styles, (1889) 14 AC 381, Lord Watson dealing with such a case said:

"When a number of individuals agree to contribute funds for a common purpose such as the payment of annuities, or of capital sums, to some or all of them, en the occurrence of events certain or uncertain, and stipulate that their contributions so far as not required for that purpose shall be repaid to them, I cannot conceive why they should be regarded as traders or why contributions returned to them should be regarded as profits."

Thus where ail the contributors to the common fund of an association participate in the surplus and all such participators are contributors there is a complete identity between the contributors and participators and the association becomes a mere agency for the operation of the purpose which they had in view. In such a case, there can be no profit at all as the payment of the surplus tack to the contributor will merely be a return of his own money which he had overpaid. It was this principle that was invoked in 1948 AC 405, where the association sold its own goods to its members. There was however no common fund to which the members contributed and thee surplus in which they participated. The Privy Council clearly pointed out that what the members paid were mere advances by way of loan to the company which was liquidated later by setting off the price due from them to the company on the supply of tea.

Thus the Company, an entity, was having a contractual sale transaction with its members. Lord Normand delivering the judgment of the Board said:

"What kinds of business other than mutual insurance may claim exemption from liability to Income Tax under the principle of Styles case, (1389) 14 AC 381, need not be here considered; but their Lordships are of opinion that the principle cannot apply to an association, society, or company which grows produce on its own land or manufactures goods in its own factories, using either its own capital or capital borrowed whether from its members or from others, and sells its produce or goods to its members exclusively. In the present case the appellant society is not bound by its rules to sell its tea only to its members, but it could make no difference if it were No matter who the purchasers may be, if the society sells the tea grown and manufactured by it at a price which exceeds the cost of producing it and rendering it fit for sale, it has earned profits which are, subject to the provisions of the taxing Act, taxable profits."

It will be seen from the foregoing that the assessee could manufacture goods and sell them to its members or any other whom it may choose. From the decision of their Lordships of the Privy Council it appears that three features should exist in a case before an assessee can invoke to his aid the principle of the decision in Styles case, (1889) 14 AC 381, namely, (1) that there should be an identity of contributors with the recipients of the surplus; (2) that the company, though incorporated, was a mere entity for the convenience of the members (policy holders) and (3) the impossibility of the contributors receiving profits in that there is only a return of contributions and not an earning of profits which is later distributed.

45. The second of the three features set out above shows that there can be a company established merely for the convenience of the members, conceived as an instrument to obey the mandate of the members. It can be readily conceded that an incorporated members club, the legal personality of the club is utilised for securing an advantage and for discharging the mandates of the members. There is no doubt that by the process of incorporation, a club is constituted a juristic person. Such a juristic person can undoubtedly own property, it can deal with it But it is not necessary that it should always own property or sell the same. An incorporated club can take certain responsibilities which a person can take. There may be cases where the very constitution of such a juristic person is not for purposes of owning or selling property but as a convenient agent for the performance of certain duties to the members thereof. In such a case an incorporated club can only be regarded as the agent or mandatory of the members. The learned Judges in Deputy Commercial Tax Officer, Triplicane Division, Mount Road, Madras and Another Vs. Cosmopolitan Club, , however, felt that there was a measure of inconsistency involved in saying at the same time that a club acquires a juristic personality by reason of its incorporation and at the same time the transfer of property vested in such a personality to individual members for price did not constitute a sale.

That, however, is based on the assumption that whenever property is vested in an incorporated club, it is vested in it as a owner, and whenever it passes it on to its members it only sells. In our opinion, the property may vest in the club for designated purposes and the club will then be only in the position of a trustee. The decision in 1948 AC 405, can have no application where a company is created for the avowed purpose of acting as an agent to its members as it were, and where it does not and indeed cannot sell its property to outsiders. Whether in a particular case a company can be held to have sold the property to its members or whether it merely discharged a duty as an agent or mandatory of its members while it delivered it to all or any of them will, in the absence of specific provision in its constitution, be a question of fact that will have to be decided in the light of the evidence in each case. But a members club holds a recognised position under the law. Whether such a club is incorporated or not incorporated, it exists and performs duties only for the benefit of the members. Its activity in regard to that matter may be an organised one but all that will be for the benefit of the members. 1t cannot, for example, begin to sell its preparations to others. If it does so, whether such an act is ultra vires or intra vires, there will undoubtedly be a sale. But In the instant case it is not denied that the petitioner club is not selling its refreshments prepared by it to outsiders.

It will be useful in this connection to refer to one of the objects of the club as stated in paragraph 3 (c) of the Memorandum of Association :

"And for the purpose of the Club to purchase, hire or otherwise acquire any movable and immovable property, and in particular, any land, building, furniture, club and household effects, utensils, books, newspapers, periodicals, fittings, apparatus for entertainment, sport appliances, conveniences and accommodation and to sell, hire, mortgage or dispose of the same whenever they are superfluous, obsolete or otherwise not required for the use of the members of the club."

The above object which controls the activity of the club shows that every article purchased by the Club is for the benefit of the Club. In other words, the members got a beneficial interest therein immediately after the purchase of articles intended for the preparation of refreshments. On conversion into refreshments the Clubs ownership will partake the same character. When therefore the refreshments are distributed to individual members against payment, the club will be only discharging its duty to the members as their mandatory or agent. In such a case there can be no element of transfer of ownership by one absolute owner to another person. The principle recognised in 1940 1 KB 576 will, in our opinion, apply to all clubs, incorporated or otherwise. Thus the juristic personality that is in the club should be held as conceived and set up as an agency to enable the members to obtain the amenities for which they constitute. There can be no sale of the goods in such a case so as to attract the provisions of the Sale of Goods Act.

46. This conclusion of ours renders it unnecessary to deal with two other contentions raised by Mr. Thyagarajan, on behalf of the petitioner. We shall however deal with them briefly with a view to secure completeness.

47. It was argued that the Cosmopolitan Club in the instant case being an incorporated association of persons, it would be a legal persona which will come within the main part of the definition of the term dealer and that the explanation to that provision which deals with clubs can only comprehend clubs other than incorporated ones. On that line of argument is built a further argument that as under the main part of Section 2 (g) a person can be considered to be a dealer only if he carries on business, and as it has been held in Deputy Commercial Tax Officer, Triplicane Division, Mount Road, Madras and Another Vs. Cosmopolitan Club, , that the petitioner is not carrying on business in regard to its activity of supplying to its members refreshments at a price, it will not be liable to any sales-tax on the turnover. The argument proceeds on a misapprehension. It was held in Deputy Commercial Tax Officer, Triplicane Division, Mount Road, Madras and Another Vs. Cosmopolitan Club, , that an incorporated club will not Ramachandra Iyer C. J.) [Prs. 45.49] Madras 75 be a dealer within the meaning of Section 2 (g) as it stood then for the reason that the profit motive was absent in the case. The explanation was enacted to supply the deficiency in the main part of the definition which could not reach institutions like the Cosmopolitan Club, Madras. Therefore, the legislature must be taken to have proceeded on the basis that co-operative societies, clubs, associations, firms etc. who distribute goods to their members for a price form a distinct category but will not by reason of their constitution be a dealer in the accepted sense of the word in regard to their dealings with their members. It therefore created a statutory fiction to make such institutions dealers within the meaning of the Act. Therefore, an incorporated club as well as an unincorporated club will come within the terms of the explanation to Section 2 (g) for the reason, that they will not come under the terms of the main part of the provision. The matter can also be put in another way. The explanation makes a special provision with regard to co-operative societies, clubs, firms and other associations, and the general words of the main part of Section 2 (g) will not therefore apply to them. It follows therefore that on the terms of Section 2 (g) as it stands, a club, whether incorporated or not, will be a dealer only by virtue of the explanation to that provision and not otherwise. It is therefore not necessary that its transactions with its members should be commercial in their nature so as to attract the tax liability.

48. The next contention relates to the validity of the Explanation with reference to Article 14 of the Constitution. It is contended that on the terms of Section 2 (g) and Section 2 (n), there has been a discrimination between incorporated companies and incorporated clubs in two respects and that therefore the provision has to be struck down as contravening Article 14. The first ground of differentiation pointed out is, that while in regard to incorporated companies other than clubs which come under the main part of Section 2 (g), it is not necessary that the transaction should be carried on by a person doing business, in respect of incorporated companies coming within the terms of the explanation there is no such requirement. Reference was made in this connection to the two decisions of this Court reported in 1954 5 STC 216 : AIR 1954 Mad 1130 [LQ/MadHC/1954/135] and Sree Meenakshi Mills Ltd. Vs. State of Madras, , where it was held that an incorporated company running a canteen for the benefit of its workers would not be liable to sales-tax on the turnover in the canteen, for the reason that it was not done in the course of business. The second ground of differentiation alleged is, that on the terms of the explanation, even a casual sale by the club might make it a dealer within the meaning of the Act, while in the case of a person who carries on business, there should be a systematic course of business.

49. There can be no doubt that co-operative societies, clubs, firms and associations form a distinct and intelligible class from those specified in the main part of Section 2 (g). The decision in Deputy Commercial Tax Officer, Triplicane Division, Mount Road, Madras and Another Vs. Cosmopolitan Club, , has emphasised the essential difference between the two. In the case of the former, in spite of the fact that there has been systematic sales by the club to its members, they will not be dealers within the meaning of the Act, as the transactions are not of a commercial nature. They are therefore different from persons referred to (including companies) who will come u/s 2 (g). The classification is undoubtedly intelligible and even reasonable. The first ground of attack under Article 14 therefore fails.

50. On the second aspect of the submissions made to us, we are of opinion that the terms of the Explanation, on their true interpretation, do not make either casual or non-repetitive or isolated act of sale by the persons mentioned in the Explanation as sales within the meaning of Section 2 (n). The Explanations to Section 2 (g) and Section 2 (n) contemplate an organised activity on the part of the club in the purveying of articles to its members and the activity of persons or institutions referred to therein is more comparable to that of traders than otherwise. We are therefore of the opinion that there is no difference in treatment between the category of persons coming under the main part of Section 2 (g) and the Explanation thereto. It follows that neither Section 2 (g) nor Section 2 (n) can be challenged as contravening Article 14 of the Constitution.

51. But from what we have stated earlier, it will be clear that in regard to the supply and distribution of refreshments by the Cosmopolitan Club to its members against payment it cannot be said that there has been a transfer of property by the Club as an absolute owner to its members as purchasers. The case is more analogous to that of an agent or mandatory investing his own monies for preparing things for consumption of the principal, the latter recouping himself for the expenses incurred. The circumstance that a small margin of profit results occasionally in such a transaction can only be regarded as incidental to the transaction, as it is not always possible to fix the price of refreshments with exactitude. That cannot obviously convert the transaction into one of sale. It follows that the Club cannot be regarded as a dealer; nor can the supply of refreshments to its members be regarded as a sale within the meaning of the Act. A writ of mandamus will therefore issue in the terms prayed for. No order as to costs.