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TMI Blog1976 (3) TMI 219X X X X Extracts X X X X X X X X Extracts X X X X ..... n the ground that there were details available to the effect that dealers in this line of business in the area had a turnover of more than twice the lease amount. Accordingly, he confirmed the assessment. The assessee preferred a further appeal to the Tribunal in which he disputed only the addition of Rs. 17,172.09. But when the matter was pending before the Tribunal, the assessee filed a petition seeking to raise an additional ground to the effect that the entire assessment was illegal as the assessee was only a lessee of a coconut thope and the realisations were only in the nature of an agricultural produce and, therefore, exempted under section 2(r) of the Act. Even without ordering this petition, the Tribunal seems to have gone into the question and allowed the appeal by its order dated 6th December, 1967, and set aside the entire assessment in the view that the realisations by the assessee were in the nature of agricultural produce and, therefore, exempted under section 2(r). The revenue preferred a revision to this court in T.C. No. 199 of 1968. This court allowed the revision petition on the ground that the Tribunal did not consider and apply an earlier decision of this cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The learned counsel for the revenue first contended that the Tribunal erred in allowing the assessee to raise additional grounds for the first time to agitate a fresh turnover which was not in question either before the assessing officer or before the Appellate Assistant Commissioner. This was on the ground that the Tribunal had no jurisdiction to permit an assessee to raise a dispute with reference to a turnover which was not disputed before the Appellate Assistant Commissioner. In support of this contention the learned counsel for the revenue relied on the decisions reported in India Pistons Limited v. State of Tamil Nadu[1974] 33 S.T.C. 472. and State of Madras v. Spencer and Co. Ltd.[1974] 34 S.T.C. 249. These two decisions are direct authorities for holding that the Tribunal had no jurisdiction to permit the assessee to raise an additional ground and dispute a turnover which was not disputed by the assessee before the Appellate Assistant Commissioner. The Tribunal tried to distinguish the decision reported in India Pistons Limited v. State of Tamil Nadu[1974] 33 S.T.C. 472. on the ground that the assessee in that case had succeeded before the Appellate Assistant Commissioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the raising of this alternative plea that the entire expenditure was of a revenue nature, this court held that in the finding given by the Appellate Assistant Commissioner that the expenditure was of a capital nature, there is a finding of denial of the claim of the assessee that the expenditure can come under the head of revenue expenditure. This view was upheld by the Supreme Court. From the facts it can be seen that this court was of the view that the question whether the expenditure of Rs. 93,215 was a revenue expenditure or a capital expenditure was before the Appellate Assistant Commissioner also and that, therefore, the Tribunal could have dealt with it. Therefore, even on the merits, this decision could not help the learned counsel for the assessee. The learned counsel for the assessee next relied on the decision in T. V. Sundaram lyengar Sons (P.) Ltd. v. State of Madras[1970] 25 S.T.C. 160. That was not a case where a different turnover was questioned for the first time before the Appellate Tribunal. When the assessee wanted to raise an alternative plea with reference to the same turnover, which he disputed before the Appellate Assistant Commissioner, this court hel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mercial Tax Officer[1971] 28 S.T.C. 502. held that the sale proceeds of coconuts are taxable turnover and the return of the assessee was not in the nature of agricultural produce. In so holding, this court specifically dissented from the judgment in K. M. Jamal Mydeen v. State of Madras[1968] 22 S.T.C. 45. This was also the view expressed in S. T. Sultan Ahmed Rowther v. State of Madras[1954] 5 S.T.C. 166.But the learned counsel for the assessee tried to distinguish S.T. Sultan Ahmed Rowther v. State of Madras(1) and the decision in Deputy Commissioner of Commercial Taxes v. Palaniappan Co.(2) on the ground that in those cases the leases were annual in nature and that there was no finding that the assessee had an interest in the leasehold land itself and that, therefore, they are not applicable to the instant case. He also, in particular, relied on the finding of the Tribunal that, in the instant case, the leases were for a period of three years and the spending of the money for the maintenance and nurturing of the thope amounts to an interest in the land itself. We are unable to agree with this contention of the learned counsel for the assessee. Even in S.T. Sultan Ahmed Rowther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts. The rejection of the accounts was therefore correct and does not call for any interference. The addition of 100 per cent to the lease amount was made on the basis that there were materials to the effect that dealers in this line of business in the area have a turnover of more than twice the lease amount. It might be that in similar trade the assessees had submitted returns of more than twice the lease amount. But that itself could not prove that every lessee should get a turnover of twice the lease amount. It would depend on the age of the trees and the varieties of coconuts in the thope. There is no evidence relating to the same. Since we have said that rejection of the accounts was proper, an addition is called for. Though we also do not have any positive material to fix the addition, we think that the assessee, on the facts and circumstances of this case, could be given a benefit of reduction of 50 per cent of the addition made by the assessing officer. Therefore, the addition will be restricted to one half of Rs. 17,172.09. The assessment will be revised accordingly. Since the revenue had succeeded on the substantial question, the revenue will be entitled to its costs. Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X
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