TMI Blog2001 (10) TMI 1115X X X X Extracts X X X X X X X X Extracts X X X X ..... the instance of the assessee. The cane so transported was cane which was the subjectmatter of the agree ment between the growers and the assessee. 3.. It is not in dispute that the price payable for sugarcane is the one payable under the Sugarcane (Control) Order being the price notified under clause 3 as also the additional price notified under clause 5A of that Order. Under the terms of the agreement the sugarcane is to be delivered at the factory gate, and that necessarily implies, that the transport charges for bringing the sugarcane from the field to the factory gate is not an amount which the manufac turer of sugar is required to pay. Despite the absence of such liability, the manufacturer for the purpose of ensuring the continuous supply of cane to feed it's sugar mill, paid the transport charges to the grower or the transporter in full or in part. The amount which was not recovered from the grower towards cost of such transportation whether the amount be paid to the grower or to the transporterwas not regarded by the manufacturer as forming part of the price. 4.. The transport charges, part of which was regarded by the manufacturer as subsidy as the recovery of the cha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... operative Sugar Mills [1976] 38 STC 238 (Mad.) which held that the payment made to the third party transporter was not includible, was overruled. 8.. The apex Court to which the matter was taken in appeal by the present assessee against the decision of the Full Bench, after holding that if the sale price is fixed statutorily, then the only obligation of the purchaser under the agreement would be to pay that price only and no other amount can be included in the purchase price if the same is paid by the purchaser to the seller, proceeded to hold that the transport subsidy given by the assessee to the growers, did form part of the consideration for which the sugarcane was sold by the growers to the assessee as such payment became a part of the implied agreement between the appellant and the sugarcane growers. Reported as Chengalvarayan Cooperative Sugar Mills Ltd. v. State of Tamil Nadu [1997] 105 STC 497 (Mad.) The court also held that those amounts were paid to ensure scheduled delivery of sugarcane and that the sale of sugarcane became complete only thereafter. The court further held that"those payments can be regarded either as payments made on behalf of the sugarcane growers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ual 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 subsection 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. 11.. Section 13(2) is an alternative available to the dealer at his option to what is prescribed in section 13(1) which reads thus: "13. Advance payment of tax.(1) The tax for each year payable under any of the provisions of this Act may be collected in advance during the year in monthly or other prescribed instalments, and for this purpose a dealer may be required to furnish within the pre scribed period such returns as may be prescribed. The assessing authority may provisionally determine the amount of tax payable in advance during any year or in respect of any period and on such determination and intimation to the dealer, he shall pay such tax in such instalments and within such period as may be prescribed." 12.. While section 13(1) contemplates an assessment by the authority, section 13(2) in effect, provides for selfassessment by the dealer who, if he opts to take recourse of sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... STC 466 (SC). 16.. For the applicability of section 13(2) of the Act, what is required to be scrutinised is a return filed by the assessee admitting it's liability to pay tax by treating certain transactions as forming part of it's turnover. The fact that in the assessments made subse quently certain other transactions are also found to form part of the turnover does not on that score alone make the assessee liable for payment of interest for that larger turnover with effect from the date on which the assessee filed returns under section 13(2). 17.. The question for consideration in these cases is as to whether filing of supplementary return subsequent to the filing of a return under section 13(2) with a demur that the amount is being paid under protest subject to the right of the assessee to contest the same at the time of assessment, can be regarded as return under sec tion 13(2) for the purpose of levy of interest under section 24(3) of the Act. The payment made under protest disputing the liability to tax cannot be regarded as an amount which the assessee admits as being payable, but as a payment made by an assessee who enter tained a genuine doubt as to whether certain tr ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
