9911796707
TMI Blog2009 (6) TMI 924X X X X Extracts X X X X X X X X Extracts X X X X ..... e year 1990-1991. In that year, a revision of assessment was made by the assessing authority by order dated 10.01.1994 determining the revised turnover in a sum of Rs.44,71,575/- by holding that the cotton received by the assesee from their sister concern is being treated as last purchase of cotton. The assessee preferred an appeal in CTA No. 36 of 1994, who also confirmed the order of the assessing authority by its order dated 02.02.1995, pursuant to which a further appeal went before the Tribunal in CTA No. 241 of 1995 in which the impugned order dated 18.10.2002 came to be passed allowing the appeal by setting aside the orders of the assessing authority as well as the Appellate Assistant Commissioner. 4. The Appellate Assistant Commissioner in its order dated 02.02.1995 stated that the assessee failed to produce any documentary evidence to show that loan was received due to scarcity or non-availability of particular variety of cotton during the relevant period and the same variety of cotton was returned in equal quantity. It was also pointed out that the assessee alleged to have borrowed cotton of 74359 kgs while the quantity of cotton returned was 75130 kgs. 5. The Tribunal h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tton, which was borrowed by him and when the same was proved to the satisfaction of the assessing authority as well as the Appellate Assistant Commissioner, the conclusion arrived at by the Tribunal in setting aside the orders of the assessing authority as well as the Appellate Assistant Commissioner is fully justified and the same does not call for interference by this Court. In support of his submission, the learned counsel for the respondent relied on the decision reported in (The Deputy Commissioner (CT) Coimbatore vs. Lakshminarayana Textiles (P) Ltd.,) 28 STC 288 and (The State of Tamil Nadu, represented by the Dy. Commissioner (CT) Salem vs. Obli Spinning Mills (P) Ltd) 1993 (3) MTCR 121. 8. Having heard the learned counsel for both sides and having perused the orders of the lower authority as well as the Tribunal and also the provisions of the Act, we are of the view that the order passed by the Tribunal does not call for interference. At the outset, we refer to Entry 2 of Second Schedule of the Act which is to the following effect:- Cotton that is to say, all kinds of cotton (indigenous or imported) in its unmanufactured state whether ginned or unginned, baled, pressed o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of those goods by the person making the transfer, delivery or supply and a purchase of those goods by the person to whom such transfer, delivery or supply is made. 12. A close reading of the above definition disclose that in order to bring the transaction under the definition of sale, at the outset, there must be a transfer of the property in goods by one person to another in cash, deferred payment or other valuable consideration. In a loan transaction, when there is no transfer of property in respect of goods lent, inasmuch as such goods are to be returned to the lender, to the extent to which such loan was borrowed, it is very difficult for us to accept that there was transfer of property involved in such a loan transaction. When we consider the relevant definition as contained in Section 2 (n) (i) and (iv) where again specific requirement to be fulfilled is transfer of property in goods,, which is not available in a loan transaction. Therefore, applying the definition of sale to a loan transaction, either the substantive definition or inclusive definition, the same will not cover the case of loan transaction as loan transaction stands entirely on a different footing than that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and 1991-92. 14. We have already held that by virtue of the prescription of cotton as set out in Entry 2 of Second Schedule of the Act, the assessee who had borrowed cotton to certain value was only obliged to return the same value in order to fulfil and conclude the said loan transaction. Once the documentary evidence in the form of registers of the assessee as well as that of its sister concerns disclose that the loan transaction was fully discharged by the assessee, there was no occasion for the assessing authority to reopen the assessment under the guise that the claim of loan transaction by the assessee was not fully established. Therefore, the conclusion of the Tribunal merits acceptance for the simple reason that the loan transaction in the case on hand, by any stretch of imagination, cannot be construed as a sale transaction in order to impose levy of tax. 15. So far as the decision of the Full Bench of Tamil Nadu Taxation Special Tribunal is concerned we find that the factual matrix stated therein was lacking proof on very many factors. In such circumstance, we are not in a position to apply the said decision to the facts of the case on hand. On the other hand, the dec ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
