TMI Blog1979 (3) TMI 196X X X X Extracts X X X X X X X X Extracts X X X X ..... Sales of second-hand gunnies Rs. 3,127.12 (iv) Sales of charcoal Rs. 92.40 (v) Sales of barbed wire Rs. 498.80 (vi) Difference in the price of wheat refunded Rs. 212.40 In respect of item 1, the assessee's claim was based on the ground that the firewood sale was merely agricultural produce cultivated by the assessee on its own. As regards items 2 to 5, it was claimed that they were not dealers in these goods. As regards item 6, it was pointed out that it was not a sale. The Joint Commercial Tax Officer disallowed the claim for deduction of items 1, 3, 4 and 6, but allowed the deduction of items 2 and 5. He fixed the total and taxable turnovers in accordance with these calculations. For the year 1971-72, the assessee claimed deduct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ompany of India Limited[1973] 31 S.T.C. 426 (S.C.). However, the learned counsel for the assessee submitted that there is a question of jurisdiction with reference to two of those items, viz., the sale of scrap-iron (item 2) and barbed wire (item 5). The learned counsel contended that these items were accepted as not liable to be taxed by the assessing authority itself and that those items cannot be the subject of revision because the order in revision has been passed beyond the period of limitation prescribed under the Act. The assessment order is dated 10th January, 1970. The Appellate Assistant Commissioner disposed of the appeal on 5th June, 1970. The Board passed the orders in revision on 27th January, 1975. If the date of the order of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be taxed as their assessability to tax is covered by the judgment in State of Tamil Nadu v. Burmah Shell Oil Storage and Distributing Company of India Limited[1973] 31 S.T.C. 426 (S.C.). In respect of the turnover relating to the sale of shade trees, it is true that they were capable of being used as firewood. We are, however, concerned with the character of the trees, whether they were agricultural or horticultural produce when they were cut, and not with the purpose for which the purchasers are likely to use them. It is a misnomer to call the sales as sales of firewood, as they were cut and sold as trees or logs, and not as firewood by splitting them with an axe. The sales were actually of shade trees after they were cut. They were s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted out in Commissioner of Income-tax v. Raja Benoy Kumar Sahas Roy[1957] 32 I.T.R. 466 (S.C.). that some basic operation prior to germination involving an application of human effort on the land itself was necessary to constitute agriculture. In an earlier decision of a Bench of this Court in Commissioner of Income-tax v. Sundara Mudaliar[1950] 18 I.T.R. 259., Viswanatha Sastri, J., pointed out that irrespective of the nature of the produce or product of the land, whatever is grown on land aided by human labour and effort, whatever does not grow wild or spontaneously on the soil without human labour or effort, would be agricultural produce. In the above case, the court was dealing with the assessability to income-tax of the income derived ..... X X X X Extracts X X X X X X X X Extracts X X X X
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