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TMI Blog1999 (12) TMI 845X X X X Extracts X X X X X X X X Extracts X X X X ..... learance of the goods by them. Therefore, the assessing authority brought to assessment a taxable turnover of Rs. 30,81,471 taxable at various rates accounted for during 1994-95, apart from exempted goods turnover of Rs. 1,71,431 aggregating to Rs. 32,52,902. Regarding unfructified sales, the assessing authority observed that the claims have not been preferred in time by filing form A4 and by complying with the condition prescribed in rule 23(2-B) of the Tamil Nadu General Sales Tax Rules, 1959. Therefore the claim was disallowed to the extent of Rs. 39,738 taxable at 9 per cent. In the first appeal, the Deputy Commissioner of Commercial Taxes, the first appellate authority held that according to the definition of sale as contained in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sion of the Madras High Court in [1974] 34 STC 6 in the case of Kuppuswami Mudaliar Sons v. State of Madras and also section 25 of the Sale of Goods Act, 1930 which relates to reservation of right of disposal. 4.. Mr. R. Mahadevan, the learned Government Advocate contended that the conclusions reached by the Appellate Tribunal are in accordance with law and therefore there is no case to interfere. 5.. We have considered the contentions carefully and perused the records. In the decision reported in [1974] 34 STC 6 (Mad.) (Kuppuswami Mudaliar Sons v. State of Madras) the issue related to inter-State sale by despatching goods by railway on March 26 and 28, 1964 and sending the documents through bank for which the sale price was paid afte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... buyer the bill of exchange together with the bill of lading or, as the case may be, the railway receipt to secure acceptance or payment of the bill of exchange, the buyer is bound to return the bill of lading or the railway receipt if he does not honour the bill of exchange; and if he wrongfully retains the bill of lading or the railway receipt, the property in the goods does not pass to him. However, it is relevant to refer to section 2(n), explanation (3) of the Act which reads as follows: Section 2(n): Sale with all its grammatical variations and cognate expressions means every transfer of the property in goods (other than by way of a mortgage, hypothecation, charge or pledge) by one person to another in the course of business for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me of sale have to be reckoned only in terms of the definition of sale as contained in section 2(n) of the Act. Therefore, the reliance placed on the decision of the Madras High Court in [1974] 34 STC 6 (Kuppuswami Mudaliar Sons v. State of Madras) wherein the passing of property on the basis of section 19 of the Sale of Goods Act was determined has no relevance in terms of the ratio of the decision of the Supreme Court reported in [1980] 46 STC 164 (Consolidated Coffee Ltd. v. Coffee Board, Bangalore). For the same reason, the reliance placed on section 25 of the Sale of Goods Act, 1930 also has no relevance. Thus, as rightly held by the Appellate Tribunal, the sale in respect of unascertained goods has to be determined in terms of exp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t if the goods sent are not taken delivery by the buyer, then the dealer is entitled to claim refund of the tax paid by him on such unfructified sale subject to certain condition. Thus, it is quite clear that a sale takes place when the goods are appropriated to the contract of sale and then an unfructified sale takes place when such goods are not taken delivery including by not retiring the documents sent through banks. Therefore, in the scheme of taxation under the Tamil Nadu General Sales Tax Act, 1959 to introduce any notion of passing of property into the frame work of section 2(n) of the Act would cut at the very root of the scheme. In fact, in [1973] 32 STC 199 (Mad.) in the case of State of Madras v. South Indian Export Company Limi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esent case before us, we are of the firm view that section 2(n), explanation (3) of the Act governs the time and place of intra-State sale and that the provisions of the Sale of Goods Act pertaining to passing of property have no relevance to determine the time and place of sale. Thus, we find that the conclusions reached by the Appellate Tribunal that the sales took place on the dates of appropriation, namely, during 1983-84 in respect of the turnover of Rs. 32,52,902 is quite in order. As regards unfructified sale, there is clear non-compliance of the conditions contemplated in section 4-D of the Act and therefore the rejection of the claim is in consonance with the decision of the Supreme Court in Deputy Commissioner of Sales Tax (Law), ..... X X X X Extracts X X X X X X X X Extracts X X X X
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