TaxTMI 
TaxTMI 
2008 (7) TMI 856
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....tween the parties to the lis, it may be useful to notice, how the authorities under the Act and the Appellate Tribunal have decided the legal issue involved in these revision petitions. We may set out the facts in Sales Tax Revision Petition No. 56 of 2008, which are typical and illustrative of the position of the other dealers in this batch of revision petitions. In the instant case, the assessee has filed his annual returns for the assessment year 2001-02 and in that has conceded the total turnover and taxable turnover in a sum of Rs. 17,18,45,761. The assessing authority has rejected the returns so filed, mainly on the ground that the purchase value declared in the delivery notes while transporting the live chicken through the entry check-post of the State differs from the purchase value shown in the books of account maintained in the regular course of business. The aggregate purchase value as per the delivery note is Rs. 25,23,55,000 and the aggregate purchase value shown in the accounts is only Rs. 16,28,83,916 and therefore, there is substantial variation in the returns filed. This issue was explained by the assessee by filing its written objection and in that had only stat....
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....mages to the goods happens on transportation and if such damages are regular in nature, the average sales rate per unit quantity will be fixed at a higher point so that the loss due to the damages will be recouped. The gross sales value will include purchase value, G.P. and other charges. Hence the method of estimation of sales value adopted in the pre-assessment notice, i.e., on the basis of purchase value, the expenses incurred and the gross profit, not on the basis of quantity sold, is correct. In this case, the assessee had consigned 2563 lorry loads of live chicken. The damages due to death, weight loss, etc., claimed is Rs. 8,07,09,238.08. This is 49.55 per cent of the accounted purchased value. The assessee has not produced any evidence for such a huge loss. The nature of the disposal of carcasses for about Rs. 8.07 crores is also not disclosed. Further, the claim of death and weight loss is Rs. 31,490 per load. No prudent man will allow such a damage in every consignment. Transporting of birds in vehicles with ultra modern facilities including air conditioning to avoid such death will be much cheaper, if such a damage actually happens. The Commissioner of Commerc....
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.... claim of the appellant that 15 per cent weight loss is allowable in the case of the appellant when considering his nature of transportation and business. I feel that this is reasonable for this year also. Therefore, on the same ground as I have decided the appeal filed for previous year I allow 15 per cent weight loss for this year also. The assessing authority is therefore directed to modify his order accordingly. Regarding the estimation of freight, coolie, etc., on the same line as I have observed in previous year, since the appellant keeps correct and complete accounts for freight and coolie, the assessing authority is directed to accept the figure adopted by (sic. for) the purpose of freight and coolie and modify his order accordingly. Last issue in both appeal is regarding the levy of interest under section 23(3A). The levy of interest was not based on actual due and demand. The assessing authority is therefore directed to revise the interest levied for the year 2001-02 and 2002-03 on the basis of the decisions of the honourable High Court of Kerala in P.K. Damodaran v. State of Kerala [2004] 138 STC 442; [2004] 12 KTR 133 and modify his order accordingly." The assessee an....
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....rcumstances of the case and in view of the decisions taken by this Tribunal in various appeals stated above for the same issue, we are of the view that it is only fair and reasonable to allow the claim of the assessee towards the weight loss and death loss at 25.99 per cent same as decided by this Tribunal in various appeals stated above. Levy of AST in respect of tax payable is effective from July 23, 2001 and hence we direct the assessing officer to delete the levy of AST prior to July 23, 2001. With regard to estimation of freight and coolie, the assessee produced the accounts for the freight and coolie before the first appellate authority and, therefore, the first appellate authority has directed to delete the estimation of freight and coolie. We find no reason to discredit the book figures and hence confirm the decision of the first appellate authority in this case. In the result the appeal filed by the assessee for the years 2001-02 and 2002-03 are allowed in part. Appeals filed by the Revenue are dismissed." The Revenue, being aggrieved by the order passed by the Sales Tax Appellate Tribunal has filed these tax revision petitions. The following questions of law are raised ....
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....purchase live chicken from various places in Tamil Nadu and the live chicken so purchased is transported in lorries and supplied to retail dealers in Kerala. The lorries pass through the entry check-post in the State of Kerala. The person in-charge of the goods vehicle has to produce before the check-post authorities the documents prescribed under the Act, including the delivery note in form No. 26. The consignor is expected to show, apart from others, the value of the goods consigned to the consignee. The Check-post Officer has the power not only to verify the documents, but also to satisfy himself that there is no evasion of tax. Simply because the valuation of the goods could be determined by a best judgment assessment, it cannot be said that the power to detain the goods in transit could not be exercised on the ground of under-valuation. Section 5 of the Act is the charging provision under the Act. It provides for levy of tax on sale or purchase of goods. The section provides, that, every dealer other than casual dealer or agent of non-resident dealer, whose total turnover in a year is not less than rupees two lakhs and every casual trader or agent of a non-resident dealer, wh....
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....ified therein, be deducted from the total turnover of the dealer. In our view, these are the only provisions of the Act and the Rules that require to be noticed for the disposal of these revision petitions. The dealers in these petitions effects purchase of live chicken from various places in Tamil Nadu, viz., Namakal, Palladam, etc., and after such purchase the live chicken are transported in lorries and supplied to retail dealers in Kerala. The point of levy of sales tax on the sales of live chicken is at the point of first sale in the State by a dealer who is liable to tax under section 5 of the KGST Act. After entering into the State at the first checkpost point, apart from other documents, they produce the delivery note in form No. 26. In the delivery note, the value of the goods both in figures and words requires to be written by the consignor or the person transporting the goods. In these petitions, the purchase value shown in the purchase accounts does not show the value of the goods shown in the delivery notes. To a specific query made by us in this regard, Sri Harishankar V. Menon, learned counsel for the assessee, would submit that those figures had to be shown in view....
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....evy on the transaction of sale, though it may be calculated on the amount of consideration received or receivable. The word "payable" used in the definition includes the amount paid immediately on sale, though it normally means the payments promised to be made in the future. If the buyer defaults in the payment, even then, the amount is deemed to have been received by the seller for the purpose of levy of tax. The consideration for sale is the amount payable by the buyer to the seller for the transfer of property in the goods. It will include all the elements which make up the price, viz., the freight, tax payable by the seller such as excise duty, sales tax, etc., and not merely what is retainable by him after paying all those liabilities. It is immaterial whether these extras are shown separately or not in the invoices or the sale bills [see Hindustan Sugar Mills Ltd. v. State of Rajasthan [1979] 43 STC 13 (SC)]. Hence, no amount should be deducted from the gross sale price for the purpose of ascertaining the consideration for sale under the Act, except those admissible under rule 9 of the Rules. The turnover of a dealer under the Act means the aggregate amount for which ....
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.... from a dealer outside the State. It may happen in this line of business, that while transporting the live chicken, there could be weight loss and also the death of the live chicken. In view of this eventualities, the assessee may be left with only 750 live chicken after they pass through the check-post and till it reaches the destination of retail dealers to whom the assessee effects supply of chicken. That only means, the assessee has sold 750 live chicken to the retail dealers in the State of Kerala. In such circumstances, the assessees can definitely produce the statement of accounts borne out from the sale registers coupled with the sale bills, to demonstrate that though they had purchased 1000 live chicken, what they could sell was only 750 live chicken to the retail dealers and request the assessing authority not to be carried away by the check-post declarations but to accept the actual sales made by them after they are brought into the State of Kerala. In such circumstances, it may be difficult for the assessing authority to reject the sales returns and then proceed to complete the best judgment assessment by merely relying on the checkpost declarations. In these revision ....