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Definition of "Business" Under Section 2(17) Of The Proposed Goods & Services Tax Act, 2016

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Dated -01-02-2017
 
By: P.C. Verma
Former Deputy Commissioner,
Commercial Taxes Department,
Jaipur (Rajasthan)

Definition of  "Business" Under Section 2(17) Of The Proposed Goods & Services Tax Act, 2016

 

The definition of "business" given u/s 2(17) of the Proposed GST Act, 2016 runs as under:-
2(17). "business" includes-

(a)

any trade, commerce, manufacture, profession, vocation, adventure, wager or any other similar activity, whether or not it is for a pecuniary benefit;

(b)

any activity or transaction in connection with or incidental or ancillary to (a) above;

(c)

any activity or transaction in the nature of (a) above, whether or not there is volume, frequency, continuity or regularity of such transaction;

(d)

Supply or acquisition of goods including capital assets and services in connection with commencement or closure of business;

(e)

Provision by a club, association, society, or any such body (for a subscription or any other consideration) of the facilities or benefits to its members, as the case may be;

(f)

admission, for a consideration, of persons to any premises; and

(g)

Services supplied by a persons as the holder of an office which has been accepted by him in the course or furtherance of his trade, profession or vocation;

(h)

Services provided by a race club by way of totalisator or a license to book maker in such club.

            Explanation. – Any activity or transaction undertaken by the Central Government, a State Government or any local authority in which they are engaged as public authorities shall be deemed to be business.


I. ANALYSIS OF THE DEFINITION-

 

A Critical analysis of the definition of "business" reveals the following:-
The definition is enumerative and not exhaustive as it used word "includes". When a particular definition "includes" certain things it is bring in other matters that would not properly come within the ordinary connotation of the word or expression or phrase in question. In the definition of business the word "includes" has been held as equivalent to mean. [AIR 1968 Raj 70 at Page 71 Chhuran Lal v/s State.]

The word "includes" in a statutory provision is designed to expend its scope [AIR 1994 Guj 130 Competent Authority v/s State.] In the statutory definitions it is generally used to enlarge the meaning of the preceding words and it is by way of extention and not with restriction. [AIR 1992 SC 129 at Page 131 Regional Director v/s High Land Coffee Works.]

The Hon'ble Calcutta High Court considered that the definition of a effect clause, beginning with the word "include" is not to single out for specific mention some of the things comprised within the natural import of the terms defined but effect is to enlarge that import by the addition of certain things, which would not otherwise be regarded as included. It is undoubtedly true that a definition clause, so expressed, is ordinarily not exhaustive, it can be so in certain context. [AIR 1957 Cal Page 270 Tarak Chandra v/s Ratan Lal.]

 

II. BUSUNSESS - MEANINGOF-

 

In ordinary meaning of business means, a person's regular occupation, profession, or trade, an activity that some one is engaged in. In a mercantile meaning, a business is an organizational entity involved in the provision of goods and services to consumers.

The levy of the tax directly pertains to business. The definition of "business" is therefore fundamental to the liability clause. The word "business" is as has often been said one of wide import and in fiscal statutes, it must be construed in a broad rather than a restricted sense. [AIR 1958 SC 861 Mazagaon Dock Ltd. v/s Commissioner-SC.]
It connotes some real substantial and systematic or organised course of activity or conduct with a set purpose. [AIR 1955 SC 176 at Page 181 Narain Swadeshi Weaving Mills v/s Commissioner of Excise].

The word "includes" makes the definition susceptiable to other construction as become imperative for the purpose of adding to the natural significance of the word "business".

The Hon'ble Supreme Court held that "business" is very wide term and would include anything which occupies the time, attention and labour of a man. [AIR 1989 SC 1988 Sedan Singh v/s New Delhi Municipal Committee]. It is also held that "business" is much wider than trade. [AIR 1978 Mad 46 at Page 48 B.C. Murirathinam v/s Meena Financieries].

 

III. SCOPE for IMPORT OF THE BUSINESS-

 

The scope and import of the expression "business" is explained fully by the Hon'ble Supreme Court in the case of State of Gujarat u/s Raipur Manufacturing Co. Ltd. 1967 SC 19 STC I at Page 6 (S.C.) which is as follows:-
"The expression "business" through extensively used is taxing statutes is a word of indefinite import. In taxing statutes it is used in the sense of an occupation or profession which occupies the time, attention and labour of a person normally with the object of making profit. To regard an activity as business there must be a course of dealings. Either actually continued or contemplated to be continued."

2. "TRADE" - MEANING OF -


"Trade" originated with human communications in pre historic times. Trading was the main facility of pre historic people, who bartered goods and services from each other before the innovation of modern-day currency. In this way "Barter" was a trading of things/goods/services without using the money. 

"Trade" involves the transfer of the ownership of goods or services, from one person or entity to another, in exchange for money, goods or services. A network that allows trade is called a market.

In its primary meaning 'trade is the exchange of goods for money' AIR 1994 Ker. 278 at Page 281 M.M. Hassan v/s STC Mohammed and in a secondary meaning it is any business carried on with a view to profit (Please See Halsbury's Law of England 4th Edition, Vol. 47 Part). The word "Trade" is also defined as buying and selling, (1995) I SSC 574 at Page 612 Khoday Distrilleries Ltd. v/s State of Karnatka. "Trade" in its wider senses includes any bargain business carried on for substance or profit. It is act of buying and selling of goods and services (Please See Concise oxford Dictionary Page 1293).

The word "Trade" has not been defined in Model GST Law, 2016. According to the oxford shorter Dictionary 'trade' is the practice of some occupation, business or profession habitually carried on, specially when practiced as a means of livelihood or gain. It is not essential to constitute "trade" that, there should be as a series of transactions both of purchase and sale. A series of retail purchase followed by one bulk sale or a single bulk purchase followed by a series of retail sales, may constitute a trade [Martin v/s Lowry 11 TC 297 Page 317- H.L]. Even a single bulk sale may be regarded as trade, but a single transaction will not be a trade unless it bears a clear indication of trade [1976 SC 105 ITR 633 Dalima Cement Ltd. v/s CIT (S.C.)].

So far as frequency of transaction in connection with 'trade' is concerned, clause (C) of sub-section (17) of section (2) of the proposed GST Law, 2016 clearly speaks that-
(c) any activity or transaction in the nature of section 2(17) (a), whether or not there is a volume, frequency, continuity or regularity of such transaction is a business.
In the opinion of the Hon'ble Supreme Court, a single purchase and a single sale may constitute trade [1976 SC 105 ITR 522 Dalima Cement Ltd. v/s CIT (S.C.)].

3. RETAIL TRADE V/S WHOLE SALE TRADE -


Retail trade consists of the sale of goods or merchandise from a very fixed location, such as a department store, boutique or kiosk, online or by mail, in small or individual lots for direct consumption or use by the purchaser.
Whole sale trade is defined as the sale of goods that are sold as merchandise to retailers, and / or industrial, commercial, institutional, or other professional business users, or to other wholesalers and related subordinate services.

4. BUSINESS - TRADE - DISTINGUISHED -


The word "business" is more extensive than "trade". Anything which occupies the time, attention and labour of a man is business. So far as "trade" is concerned, in its primary meaning, it is exchanging of goods for goods or goods for money and it is a manual or mercantile activity [(1970) 25 STC 82 State of Punjab v/s Bajaj Electricals Ltd. - (SC)]. Unless a transaction is connected with trade or has the incidence or elements of trade, it will not be within the definition of business [1974 RLW 106 Gouri Shankar v/s Megha Raw-RRB].

5. COMMERCE - MEANING OF - 


The word "Commerce" has also not been defined under proposed GST Law, 2016, so one has to depend upon dictionary meaning and on rulings/Verdicts given by different courts of the country. "Commerce" involves the transfer of the ownership of goods or services, from one person or entity to another, in exchange for money, goods or services.

A Commercial venture means investment of capital or any work and a risk of profit or loss runs with it. Word "Commerce" not only includes transactions or purchase, Sale and exchange of articles but also includes instrumentalities and agencies by which it is promoted and the means and equipments by which it is carried on and the transaction of person as well as goods both by land and sea (please see Black's Dictionary Page 336).
According to chambers, Twentieth Century Dictionary, "Commerce" means interchange of merchandise on a large scale, between nations or individuals, extends trade or traffic, inter course.

The word "Commerce" has different shades of meaning [1969 23 STC 468 G R Kulkarani v/s CST (MP)]. In Conventional Sense whatever capital is to be laid out on any work, and a risk run of profit or loss, it is commercial venture [1848-6 Moore PC 413. Key v/s Ruthor Ford].

In other sense "Commerce" means exchange of merchandise especially on a large scale between different countries or districts, [Reader's Digest Dictionary, Vol I Page 186] but in this sense, commerce includes not only the purchase, sale and exchange of commodities, but also the instrumentalities and agencies by which it is promoted and the means and appliances by which it is carried on and the transportations of persons as well as goods both by land and sea.
   The Hon'ble Supreme Court held that in industrial legislation an activity is commercial when it is systematically and habitually under taken for production or distribution of goods or for rendering services to the community or any part of community with the help of employees in the manner of a trade or business [AIR 1969 SC 63 Dr. D.M. Surati v/s State of Gujarat (SC)].
In common parlance, trade and commerce carry with them the idea of purchase and sale with a view to make profit. If a person buys goods to sell them for profit, it is an ordinary case of trade. If the same activity is on a large scale, it is called commerce. However no body can define the volume of business, which would convert a trade into commerce [1954 5 STC 216 at Page 244 Gannon Dunkerlay & Co. v/s State of Madras (Mad. H.C.)]

6. DISTINCTION BETWEEN "TRADE" & "COMMERCE"- 

The word commerce has different shade of meaning. The only distinction between "Trade" and "Commerce" can be said is that, "trade" relates to our dealing and traffic within the country and "commerce" relates to our dealing with other nations, said by M.P. High Court in 1969 23 STC 469 G.R. Kulkarani v/s CST (M.P. H.C.)

7. MANUFACTURE - MEANING OF- 

"Business" includes "manufacture" also. The word "manufacture" is derived from the Latin words "manus" and "factura", literally meaning, is putting together by hand, that is the process of making products by hand or machinery, means that a manufacturing process can be manual as well as mechanical.
"Manufacture" implies a change, but every change is not manufacture. "Manufacture" is a process but every process is not manufacture. The term "manufacture" refers to a process involving the conversion of an input into a completely different output.

For instance, taking a piece of wood and converting it into smaller pieces of wood does not amount to manufacture as the wood has not under gone any change. But when pieces of wood are converted into a table, it amounts to manufacture as the wood has now become another product viz table.

"Manufacture" implies a change and there must be transaction, a new and different article emerging with a distinctive name, character or use [AIR 1971 Mad. 245 at Page 252 T.P. Sundarlingam v/s The State Madras] and [AIR 1989 SC at Page 527 M/s Ujagar Prints v/s Union of India]. The Hon'ble Supreme Court held that, "manufacture" means to bring into existence a new substance and does not mean merely to produce some change in a substance. By process of manufacturing a distinct commercial commodity different from the raw material comes in to existence [AIR 1982 SC 844 at Page 848 Muncipal Council Demon v/s Firm Prabhudas Kishordas].

The moment there is transformation into a new commodity commercially known as a separate and distinct commodity having its own character and use, "manufacture" take place.

8. DEFINITION OF MANUFACTURE - 


Although the word "manufacture" is not defined under proposed GST Act, 2016, but u/s 2(63) "manufacturer" is defined as under:-

2(63). "manufacturer" shall have the meaning assigned to it by the Central Excise Act, 1944 (1 of 1944).
The above definition is borrowed from the Central Excise Act, 1944. Here it is pertinent to mention the definition given u/s 2(f) of the Central Excise Act, 1944 (CEA) which runs as under:-
(f) "Manufacture" includes any process,-

(i)

Incidental or ancillary to the completion of a manufactured product;

(ii)

Which is specified in relation to any goods in the section or chapter notes of the first schedule to the Central Excise Tariff Act, 1985 (5 of 1986) as amounting to manufacture; or

(iii)

Which, in relation to the goods specified in the third schedule, involves packing or repacking of such goods in a unit container or labeling or re-labeling of containers including the declarations or alteration of retail sale price on it or adoption of any other treatment on the goods to render the product marketable to the consumer, and the word. "Manufacturer" shall be construed accordingly and shall include not only a person who employs hired labour in the production or manufacture of excisable goods, but also any person who engages in their production or manufacture on his account.

The term "Manufacture" must be examined in the light of the definition given in the relevant statute.
The Hon'ble Jharkhand High Court, Ranchi also held that meaning of manufacture to be based on definition of term in respective statute [(2005) 138 STC 121 Steel India v/s State of Jharkhand].
As per section 2(f) of the Central Excise Act, 1944 "manufacture" includes any process -

(i)

incidental or ancillary to the completion of a manufactured product And

(ii)

which is specified in relation to any goods in the section or chapter notes of the Ist schedule to the Central Excise Tariff Act, 1985 (CETA), as amounting to manufacture (deemed manufacture) oR

(iii)

Which in relation to goods specified in 3rd schedule of CETA involves packing or repacking of such goods in a unit container or labling or re-labling of containers including declaration or alteration of retail sale price on it or adoption of any other treatment on the goods to render the product marketable to the consumer (deemed manufacture)

A raw material supplier is not a manufacturer since he does not carry out any manufacturing activities. Where a company outsources a job to a third party (job-worker) for converting a raw material into an excisable product, the third party, and not the company, is considered as the manufacturer.
Here it is noticiable that the Central Excise Duty can be levied in the hands of a manufacturer irrespective of ownership of materials. Thus, the job-worker is liable to pay excise duty although he is not the owner of the finished product.
For example, Mr 'K' is the owner of raw material. He supplied the raw materials to the household ladies, who are manufacturing the dhoop, agarbatties etc. in their houses. There was no control/supervision over their work and payment to them was on the basis of number of pieces manufactured. It was held by Supreme Court that the household ladies (Not Mr K) were the manufacturers. [See CCE v/s M M Khambhatwala (1996) Supreme Court].
If goods are manufactured outside the Indian territorial waters but within 150 nautical miles from the shore line, then Central Excise Duty is attracted.

9. PROFESSION, VOCATION, ADVENTURE, WAGER (BET) - ARE - BUSINESS


As per section 2(17)(a) of the proposed GST Act, 2016 profession, vocation (occupation), adventure, wager (bet) or any other similar activities, whether or not it is for a pecuniary benefit, are business activities, means that pecuniary benefit is not essential for any activity to be a business.

10. PECUNIARY BENEFITS - MEANING OF -


Means monetary benefits. An award or compensation or benefit that is quantifiable in monetary terms. As per section 2(17)(a) pecuniary benefit is not essential for any activity, to be a business. A plain reading of section 2(17)(a) of the proposed GST Act, 2016, clearly depict that pecuniary benefit (Profit or gain) from 'business' is irrelevant. In the same way actual accruing of profit or gain is also not relevant. In the case of Income Tax Co-operative Supply Society Ltd. (1973) 31 STC 426 SC. it has been held that, "business" can be said conducted, where there is no primary motive of profit or gains.

11. TRANSACTIONS - INCIDENTAL OR ANCILLARY -

Sub-clause (b) of the definition of 'business' includes, any transaction incidental or ancillary to such trade, commerce, manufacture, profession, vocation, adventure and wager. This sub-clause aims to cover mainly sales of empties waste products and by-products of the commodity in which the dealers deals [(1989) 72 STC 150 Shroff & Co. v/s Muncipal Corporation of Great Bombay (SC)].

According to Chambers Twentieth Century Dictionary, 'ancillary' means   "Subserving, auxiliary and incidental means naturally attached accompanying, concomitant occasional casual."
A work is "ancillary" or incidental, to a 'business' when it is not necessary there to or a primary part there of [See F. Strouds Judicial Dictionary 2nd Edition at Page 82.]

A thing is incidental to another if it merely appertains to something else as primary. Surely, such work should not be extraneous or contrary to the purpose of the establishment but need not be integral to it either. A work is ancillary or incidental to a trade or business when it is not necessary there to or a primary part thereof, for example the business of railway company is primarily that of carriage of passengers or goods, and it is not responsible for a contract if employed to build, repair and paints its station because such work is merely ancillary, or incidental to, and is not part of its business [(1900) 2 QB 100 Pearce v/s London & South Western Railway.]

12. OCCASIONAL TRANSACTION AND BUSINESS -


Sub-Clause (c) of the definition of 'business' includes any activity or transaction in the nature of trade, commerce, manufacture, profession, vocation, adventure and wager, whether or not there is volume, frequency, continuity or regularity of such transaction.

It means occasional transactions are also come in the ambit of definition of business. Occasional means occurring at times, but not constant regular or systematic. Occasional transaction are those transactions which happen now and then or incidentaly. For such transaction volume, frequency and continuity is not required and even then they are covered in the definition of business.

13. SUPPLY OF GOODS - SERVICES IN CONNECTION WITH COMMENCEMENT OR CLOSURE OF BUSINESS -

As per clause (d) of the definition, business includes supply or acquisition of goods including capital assets and services in connection with commencement or closure of business.

14. COMMENCEMENT OF BUSINESS-

Commencement means the first existence of a thing or beginning of a thing. Commencement of any business does not mean merely the business for which the company was started but it includes any transaction of sale or purchase [AIR 1960 Raj 49 Kishangarh Electric Supply Co. Ltd. v/s State of Rajasthan (Raj.H.C.)]

Where the assessee installed the plant and machinery and the unit was ready to discharge the function for it was being set up, namely manufacture of Cement. It was held that the assessee commenced its business when it started the activity of extraction of lime stone by quarrying the leased area of land [(1973) 91 ITR 170 at Page 178 & 179 Commissioner of Income Tax v/s Saurashtra Cement and Chemical Industries.]

15. CLOSURE OF BUSINESS -

A closure means the state of being closed and closure of business means to bring to an end of business activities.
Sale of machinery by a firm closing down business is covered under the definition of business [(1981) 48 STC 447 CST v/s S L Vasudeo Rao (M.P. H.C.)]

16. CLUB - ASSOCIATION - SOCIETY - MEMBERS - FACILITY IS BUSINESS -

As per clause (e) of section 2(17) business includes provision by a club, association, society, or any such body (for a subscription or any other consideration) of the facilities or benefits to its members as the case may be.

17. ADMISSION TO PREMISES -

As per the provisions of clause (f) of sub-section (17) of section 2 of the proposed GST Law, 2016 'business' includes admission, for a considerations, of persons to any premises.

18. SERVICES - SUPPLIED BY A PERSON -

Section 2(17)(g) of proposed GST Act, 2016 says that "business" includes, services supplied by a person as the holder of an office which has been accepted by him in the course of furtherance of his trade, profession or vocation.

19. SERVICES BY A RACE CLUB -

Services provided by a race club by way of totalisator or a licence to book maker in such club - is "a business" - section 2(17)(h).

20. ACTIVITY - TRANSACTION BY CENTRAL / STATE GOVERNMENT -

Any activity or transaction undertaken by the Central Government, a State Government or any local authority in which they are engaged as public authorities shall be deemed to be business.

 

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