TMI Blog2001 (10) TMI 1116X X X X Extracts X X X X X X X X Extracts X X X X ..... entral Government under clause 3, producers are also required to pay an additional price for sugarcane purchased on or after October 1, 1974, by virtue of clause 5-A of that order. Clause 5-A in sub-clause (1) thereof mandates such additional payment, to the extent such additional payment may be found due in terms of the Sugarcane (Control) Order. The manner in which the additional price is to be calculated is set out in the Second Schedule in the shape of a formula. Most of the inputs required for making that calculation are the figures available with the producers, except the rate of return which is a figure to be recommended by an authority which the Central Government is required to specify. Formula given therein is: R-L+2A+B X = ---------------------- 2C wherein "R" is the amount in rupees of sugar produced during the sugar year excluding the excise duty paid or payable to the factory by the purchaser. It is evident from the formula itself that the additional price is the amount which is incapable of determina- tion at the time the sugarcane is supplied to the factory by the grower. The additional price can only be determined at the end of the sugar year and not earlier. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the other sugar producers effected payment to the sugarcane growers in excess of the price fixed under clause 3, and up to the amounts fixed as the State Advised Price in the communication sent by the State. The payments so effected were labelled by the assessee as advance. The amount of the advance was not included by the assessee in the returns filed by it under section 13(2) of the Tamil Nadu General Sales Tax Act, 1959 but were, after the price was fixed under clause 5-A and notified, included in revised returns filed by the assessee. The purchase tax payable on that price differential was also paid along with the revised return. 11.. The assessing authorities having held that the assessee was liable to pay purchase tax on the amounts paid by the assessee to the sugarcane growers as advance, as in the view of the revenue, all such payments were in fact part payments of the price for the sugarcane, and further that the assessee was liable to pay interest under section 24 of the Tamil Nadu General Sales Tax Act, for not having paid the purchase tax at the time it was due and payable, the petitioner challenged those orders up to the Tamil Nadu Taxation Special Tribunal*, with un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .. In the case of State of Tamil Nadu v. Kothari Sugars Chemicals Ltd. [1996] 101 STC 197, the Supreme Court upheld the decision of the division Bench of this Court in the case of Thiru Arooran Sugars Ltd. v. Deputy Commercial Tax Officer, Mannargudi [1988] 71 STC 444. 16.. The apex Court held that for treating the entire amount paid by the producers as the price of sugarcane supplied, it must be found proved as a fact that the higher price including the excess amount was paid as the price of the sugarcane under the agreement between the growers and purchasers, irrespective of the lower amount being fixed as the aggregate of amounts fixed under clauses 3 and 5-A of the Sugarcane (Control) Order. 17.. In the case of E.I.D. Parry (I) Ltd. v. Assistant Commis- sioner of Commercial Taxes [2000] 117 STC 457 (SC) to which the assessee herein was a party, it was held after reviewing the earlier cases, that- "....................the amounts paid by way of consideration by the purchaser to the seller of goods in pursuance of the contract of sale can legitimately be regarded as purchase price while calculating the turnover for the purposes of sales tax legislation. What can legiti- matel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ability which the producer was required to discharge, namely the payment of the additional price under clause 5-A. Section 11 of the Sale of Goods Act, 1930 expressly provides that unless a different in- tention appears from the terms of the contract, stipulations as to time for payment is not deemed to be the essence of contract of sale. Here, it is the case of the petitioner that it had not agreed to pay any price other than the one provided for in the Sugarcane (Control) Order. The fact that a part of the price payable under clause 5-A was paid even before the Government notified the amount payable under clause 5-A does not, on that score, take away the character of a part payment of price in respect amounts paid by the assessee up to the limit of the amount notified as additional price. 21.. Though the assessee has used the word "advance" while making payment to the grower, the Sugarcane (Control) Order does not envisage the payment of any such advance. It, however, recognised payment being made by the producer to the grower even before the additional price is notified under clause 5-A. Such payments are regarded by sub-clause (6) of clause 5-A as part pay- ment of the pric ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her periods as may be prescribed. For this purpose, he may be required to furnish returns showing his actual turnover for each month or other periods as may be prescribed and to pay tax on the basis of such returns. The tax under this sub-section shall become due without any notice of demand to the dealer on the date of receipt of the return or on the last due date as prescribed, whichever is later." 25.. Rule 18 sets out the thing that the dealer is required to do when he exercises the option under section 13(2). 26.. Learned counsel submitted that the scheme of section 24 permits levy of interest in all cases where the tax is not paid within 21 days from the notice of demand, and the only exception to that is in cases of self-assessment made under section 13(2) in which case the tax becomes payable on the date of the receipt of the return or the last due date prescribed whichever is later. 27.. Counsel submitted that even in cases where a dealer who has opted for self-assessment under section 13(2), files a return which may later be found to be incorrect or incomplete, such a dealer would not be liable to pay interest for any amount in excess of what it had admitted to be t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urnover under the relevant statutory provision, even though the constitutional validity of the provision had been challenged. The lack of bona fides on the part of the assessee therein was taken note of for upholding the levy of interest. 30.. A three-Judge Bench of the apex Court in the case of Maruti Wire Industries Pvt. Ltd. v. Sales Tax Officer [2001] 122 STC 410, applied the law laid down in the case of J.K. Synthetics Ltd. [1994] 94 STC 422 (SC), in a case arising under the Kerala General Sales Tax Act. It upheld the plea of the assessee that the legislation did not specifically provide for levy of penal interest for failure to file return of turnover. The court observed that-"A legislative casus omissus cannot be supplied by judicial interpretative process". 31.. Learned counsel submitted that the situation here is similar to the one which the apex Court considered in the case arising under the Rajasthan and Haryana General Sales Tax Acts. Counsel submitted that the language of section 13(2) of the Tamil Nadu Act clearly indicates that the tax referred to therein is the tax which is payable on the basis of such return; "such" referring to the return which the assessee fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the petitioner itself contains a clear admission by the assessee as to the extent of the turnover that is taxable and the amount of tax that is required to be paid thereon. 36.. For the purpose of section 13(2), the tax payable by the assessee is not an amount which is confined to the erroneous original returns filed by the assessee, but is an amount which is payable in terms of the revised corrected returns filed by the assessee. The returns being returns of self-assessments, the basis for calculating the tax is the figures set out in that return. It is wholly impermissible for an assessee to file a defective return, disclaim liability for pay- ment of tax as also of any interest for delayed payment of tax on the basis of that incorrect return and thereafter file a revised return including therein the correct taxable turnover admitting the liability for payment of further amounts by way of tax, and then claim that it is not liable for payment of any interest for the delay in remitting the tax from the date of original return to the date of the revised return. 37.. The levy of interest for the period between the date of filing the incorrect original return and the date on which ..... X X X X Extracts X X X X X X X X Extracts X X X X
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