TaxTMI 
TaxTMI 
1971 (3) TMI 93
X X X X Extracts X X X X
X X X X Extracts X X X X
....engages himself in an avocation such as obtaining on lease the cocoanut topes situate in and around his village belonging to third parties, gathers the cocoanuts from such topes and disposes of the same in open market. The petitioner himself says that he pays the lease amounts agreed between himself as lessee and the owner of the tope as lessor, out of the sale proceeds of cocoanuts gathered by him as the lessee of the garden. He did not register himself as a dealer under the Tamil Nadu General Sales Tax Act, 1959. The assessing authority, on information that the petitioner was dealing in cocoanuts, inspected his place of business and recovered several lease deeds. The lease deeds disclosed that the petitioner bargained with the owner of th....
X X X X Extracts X X X X
X X X X Extracts X X X X
....the decision in Kannappa Mudaliar v. State of Madras[1968] 21 S.T.C. 41. The other contention now raised by Mr. Srinivasan, the learned counsel for the petitioner, is that even if he is a lessee of the garden or topes, he having grown either physically or notionally the agricultural produce, viz., cocoanuts, within the State of Tamil Nadu, the turnover in relation to such sales of cocoanuts cannot be characterised as assessable turnover as it is excluded under section 2(r) of the Tamil Nadu General Sales Tax Act, 1959. He has, however, fairly conceded that the petitioner has no interest in the land, but the sum total of his activity and his transactions or dealings with the owners of the topes has to be understood fairly as enabling him to ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....er, usufructuary mortgagee, tenant or otherwise, shall be excluded from his turnover; Explanation (1).-'Agricultural or horticultural produce' shall not include such produce as has been subjected to any physical, chemical or other process for being made fit for consumption, save mere cleaning, grading, sorting or drying; Explanation (2).-Subject to such conditions and restrictions, if any, as may be prescribed in this behalf- (ii) the amount for which goods are sold shall include any sums charged for anything done by the dealer in respect of the goods sold at the time of, or before the delivery thereof; (iii) any cash or other discount on the price allowed in respect of any sale and any amount refunded in respect of articles return....
X X X X Extracts X X X X
X X X X Extracts X X X X
....in the State, that the result of such an activity is the cocoanut produce, that it is by the sale of such cocoanuts the aggregate amount of such an activity is arrived at, and that, therefore, such proceeds of the sale by the petitioner of the cocoanuts grown by himself obviously have to be excluded from the assessable turnover of the petitioner. This argument overlooks the fact that the petitioner is not growing the produce nor is the growth of the agricultural produce, by himself. He is merely a lessee of a tope. By way of analogy we can safely adopt the definition of "tope" given in the Tamil Nadu Agricultural Income-tax Act (5 of 1955). There, section 2(y) says: "tope" means any land containing large groups of fruit trees or valuable ti....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ter year or at stated intervals. Thus, this is a case in which two primordial requirements of the first limb of the proviso, viz., that the produce should be grown within the State and that growth should be by the assessee himself, are conspicuously absent. As pointed out by the learned Government Pleader, this case comes squarely within the principles laid down in Sultan Ahmed Rowther v. State of Madras[1954] 5 S.T.C. 166. That is a case in which the contract admittedly did not disclose any interest in the petitioner over the land. He secured under the lease a right to the usufructs from the trees in the tope. In those circumstances, this court held: "All that the assessee got under the contract was only an exclusive right to the usu....