TMI Blog2001 (12) TMI 852X X X X Extracts X X X X X X X X Extracts X X X X ..... uthority failed. But the Appellate Tribunal restricted the addition to Rs. 34,72,845. 5.. Before the Tribunal, the assessee relied on a decision of the Madras High Court and certain other decisions to contend that there was no sale. But the Appellate Tribunal relied on the decision reported in Radhas Printers v. State of Kerala [1993] 90 STC 201 (Ker); (1993) 1 KTR 104 and held that there was a sale in 1989-90. Learned counsel for the petitioner Sri Dr. K.B. Mohamed Kutty submitted that the question for consideration in this revision is whether the forfeiture of security deposit can be treated as taxable turnover and whether there was a sale of the goods as held by the Tribunal. 6.. There is no dispute that the value of the raw material ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rmed the assessee stating that they had set-off the deposit amount of Rs. 34,72,845.14 made by them against the loan and treated the account "as closed". The question is whether there is loan transaction or whether there is sale. 7.. The word "sale" is defined under section 2 (xxi) of the Act, which is as follows: " 'Sale' with all its grammatical variations and cognate expressions means every transfer, whether in pursuance of a contract or not, of the property in goods by one person to another in the course of trade or business for cash or for deferred payment or other valuable consideration, but does not include a mortgage, hypothecation, charge or pledge". According to the assessee, the records will disclose that actually the goods wer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... actually it was a sale liable to tax under the Act. The Appellate Assistant Commissioner, while agreeing with the assessing authority that there was a real sale, held that it was an inter-State purchase not liable to tax under the State Act and accordingly set aside the revised assessment. The Board of Revenue in suo motu revision set aside the order of the Appellate Assistant Commissioner and restored the order of the assessing officer passed under section 16 of the Act. The Madras High Court held that "if the findings of the assessing officer and the Board that the loan transaction was a make-belief arrangement and not a real loan transaction were not accepted, then unless a subsequent agreement of sale and purchase was found, the transa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he other, provision for payment of interest and receipt of the same. Interest also is credited in the paper purchase account. Stock register principally is for ensuring the authenticity of the accounts and other connected records. If M/s. Vimala Packaging Industries returned the goods as is claimed, the same would have found a place in the stock register. The stipulation for payment of interest has added significance when it is remembered the same usually could be on purchase price, indicative of deferred payment rather than damages for the user of the goods." Thus, in that case, the assessee's case was not accepted because it found that the receipt of interest was not towards damages and further the stock register did not contain anythin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g authority did not take action to refund the excess tax paid in terms of the orders of the Appellate Assistant Commissioner though an application was filed under section 39-A(1) of the Tamil Nadu General Sales Tax Act, 1959 read with rule 32(2) of the Tamil Nadu General Sales Tax Rules, 1959. Subsequently, on the basis of an application filed under section 24(4) of the Tamil Nadu General Sales Tax Act, 1959 read with rule 23-A(1) in form No. XXXIII claiming interest at 12 per cent per annum on the excess tax paid an order to give effect to the Appellate Assistant Commissioner's order was issued and a refund voucher bearing No. 275152 dated January 22, 2001 was also issued. However, when the refund voucher was presented for encashment in th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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