TMI Blog2007 (4) TMI 622X X X X Extracts X X X X X X X X Extracts X X X X ..... and in Salem Division subject to certain conditions by G.O.(2D) No.53, Environment and Forest (FRX) Department dated 23.10.1997. Subsequently, by Government Order in G.O.Ms.No.234, Environment and Forest Department dated 06.08.1998, the Government of Tamil Nadu renewed the lease in favour of the appellant for the said area of 177.96 hectares (168.78 hectares of already broken up area and 9.882 hectares of to be broken up area) for a period of ten years from the date of issue of the said order on conditions mentioned therein. Pursuant to the grant of lease, the appellant entered into a mining lease in Reserve Forest Agreement under Forest (Conservation) Act, 1980 with the District Forest Officer, Salem on 24.11.2002 agreeing to all the conditions contained therein and the conditions in respect of payment of rent and royalty reserved therein. 3. For the assessment year 1999-2000, the appellant filed the monthly return in Form A1 under the TNGST Act reporting their total and taxable turnover of Rs.2,61,85,450.48 paise and Rs.2,58,28,274.32 paise claiming exemption over a turnover of Rs.3,57,176.16 paise. The appellant s books of accounts were called for and checked for framing of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Nos.46, 47 and 248 of 2004 before the Tamil Nadu Taxation Special Tribunal. Subsequently, the O.Ps., were transferred to this Court and re-numbered as W.P.Nos.2539, 2580 and 2631 of 2006. The value of the mineral which has been recorded as purchase consideration and assessed to tax under Section 7-A of the TNGST Act is put in issue in W.P.Nos.2580 and 2631 of 2006. The learned single Judge was pleased to dismiss the writ petitions holding that the assessee has an alternative remedy by way of appeal to the prescribed authority under Section 31 of the TNGST Act. 5. Mr.P.Rajkumar, learned counsel appearing for the appellant strenuously submitted that the levy of purchase tax under Section 7-A of the TNGST Act on the magnesite excavated from the leasehold land is without jurisdiction and also unconstitutional as beyond the State s taxing power under Entry 54 in List II of the VII Schedule to the Constitution of India. Learned counsel urged that under the mining lease, the appellant is entitled to take the benefit arising out of the forest land and the same is a profit a prendre, which in Indian Law is a benefit arising out of the land creating interest in immovable property. Hence, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s for sale or otherwise; or (b)disposes of such goods in any manner other than by way of sale in the State; or (c)despatches or carries them to a place outside the State except as a direct result of sale or purchase in the course of inter-State trade or commerce; or (d) installs and uses such goods in the factory for the manufacture of any goods, shall pay tax on the turnover relating to the purchase as aforesaid at the rate mentioned in Section 3 or 4, as the case may be. (2) Notwithstanding anything contained in sub-section (1), the provisions of Section 7 shall apply to a dealer referred to in sub-section (1) who purchases goods (the sale of which is liable to tax under sub-section (1) of Section 3) and whose total turnover for a year is not less than one lakh of rupees but not more than two lakhs of rupees, and such a dealer may, at his option, instead of paying the tax in accordance with the provisions of sub-section (1) pay tax at the rates mentioned in sub-section (1) of Section 7: Provided that this sub-section shall not apply to the purchases made on or after the 1st day of April, 1990. (3) Every dealer liable to pay purchase tax under sub-section (1), sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and for this reason any disposition it must be in writing. A profit a prendre which gives a right to participate in a portion only of some specified produce of the land is just as must an interest in the land as a right to take the whole of that produce . 242. What may be taken as a profit a prendre. The subject matter of a profit a prendre, namely, the substance which the owner of the right is by virtue of the right entitled to take, may consist of animals, including fish and fowl, which are on the land, or of vegetable matter growing or deposited on the land by some agency other than that of man, or of any part of the soil itself, including mineral accretions to the soil by natural forces. The right may extend to the taking of the whole of such animal or vegetable matters or merely a part of them. Rights have been established as profits a prendre to take acorns and beech mast, brakes, fern, heather and litter, thorns, turf and peat, boughs and branches of growing trees, rushes, freshwater fish, stone, sand and shingle from the seashore and ice from a canal; also the right of pasture and of shooting pheasants. There is, however, no right to take seacoal from the foreshore. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sh in the sections of the lake covered by the licences and that as fish was movable property, the said Act was not attracted because it was confined to immovable property. The Court observed that if this contention of the petitioners was correct, then their petition under Article 32 was misconceived because until any fish was actually caught, the petitioners would not acquire any property in it. The Court held that what was sold to the petitioners was the right to catch and carry away fish in specific sections of the lake for a specified future period and that this amounted to a licence to enter on the land coupled with a grant to catch and carry away the fist which right was a profit a prendre and in England it would be regarded as an interest in land because it was a right to take some profit of the soil for the use of the owner of the right and in India it would be regarded as a benefit arising out of the land and as such would be immovable property. The Court then pointed out that fish did not come under the category of property excluded from the definition of immovable property . The Court further held that if a profit a prendre is regarded as tangible immovable property, then ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . It is usually a payment of money, but may be a payment in kind, that is, of part of the produce of the exercise of the right. Royalty also means a payment which is made to an author or composer by a publisher in respect of each copy of his work which is sold, or to an inventor in respect of each article sold under the patent. We are not concerned with the second meaning of the word royalty given in Jowitt. Unlike the Timber contracts, the bamboo contract is not an agreement to sell bamboos standing in the contract areas with an accessory licence to enter upon such areas for the purpose of felling and removing the bamboos nor is it, unlike the timber contracts, in respect of a particular felling season only. It is an agreement for a long period extending to fourteen years, thirteen years and eleven years with respect to different contract areas with an option to the respondent-company to renew the contract for a further term of twelve years and it embraces not only bamboos which are in existence at the date of the contract but also bamboos which are to grow and come into existence thereafter. The payment of royalty under the bamboo contract has no relation to the actual quan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efrom and not by picking and choosing certain clauses and the ultimate effect or result as the court did in the Orient Paper Mills case [See (1977) 40 STC 603 (SC)]. 127. Conclusions To summarise our conclusions: (9)The dictionary meaning of a word cannot be looked at where that word has been statutorily defined or judicially interpreted but where there is no such definition or interpretation, the court may take the aid of dictionaries to ascertain the meaning of a word in common parlance, bearing in mind that a word is used in different senses according to its context and a dictionary gives all the meanings of a word, and the court has, therefore, to select the particular meaning which is relevant to the context in which it has to interpret that word. (16) Being a benefit to arise out of land, any attempt on the part of the State government to tax the amounts payable under the bamboo contract would be not only ultra vires the Orissa Act but also unconstitutional as being beyond the State s taxing power under entry 54 in List II in the VII Schedule to the Constitution of India. (17)The case of Firm Chhotabhai Jethabai Patel Co. Vs. State of M.P., [1953] SCR 476 is not ..... X X X X Extracts X X X X X X X X Extracts X X X X
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