DEPUTY COMMISSIONER OF SALES TAX LAW BOARD OF REVENUE TAXES ERNAKULAM Vs. MALAYALAM PLANTATIONS INDIA LTD

JUDGEMENT

(1.) THESE tax revision cases are filed by the Revenue. The respondent in these cases is an assessee to sales tax. For the years 1967-68, 1968-69 and 1969-70, the Sales Tax Officer brought to tax the turnover relating to tress of spontaneous growth. In reply to the pre-assessment notice, the respondent-assessee categorically stated that the trees that were clear/selective felled in their case were trees of spontaneous origin, and in view of the decisions of the Supreme Court and the High Court, the turnover relating thereto cannot be taxed. The first appeals filed by the assessee were unsuccessful. In second appeals filed by the assessee, the Appellate Tribunal held that there is no basis to hold that the trees cut and removed are not spontaneous growth but were planted and maintained by the assessee. Relying on the decision of this Court in Deputy Commissioner of Sales Tax (Law) v. Kalpana Krishna Mohan [1985] 59 STC 316 the Appellate Tribunal held that in the absence of any evidence on the part of the State, the trees cut and sold is the clear/selective felling under the contract are of spontaneous growth and not liable to be taxed under the Kerala General Sales Tax Act, 1963, for the periods in dispute. For the year 1969-70, the Revenue brought to tax the turnover relating to the sale proceeds of old scrap, discarded machineries, etc. Relying upon the decision of the Supreme Court reported in State of Gujarat v. Raipur Manufacturing Co. Ltd. [1967] 19 STC 1 and also the decision of this Court in Deputy Commissioner of Sales Tax v. Carborundum Universal Ltd. [1981] 47 STC 73, the Appellate Tribunal held that the sale of discarded material (sale of machinery and sale of gunnies) cannot be included in the taxable turnover of the assessee. The Revenue has filed the above revisions challenging the above over passed in second appeals by the Appellate Tribunal in T. A. Nos. 57, 58 and 59 of 1981 dated August 6, 1985.

(2.) WE heard counsel for the Revenue, Mr. Karunakaran Nambiar. The assessee did raise the plea that the trees which were clear/selective felled were trees of spontaneous growth and so they are not exigible to tax. As rightly observed by the Appellate Tribunal, the assessing officer without making any enquiry and in the absence of any data held that the trees sold by the assessee are not of spontaneous growth. After adverting to the contention of the Revenue as well as the assessee, the Appellate Tribunal found that there is no basis for coming to the conclusion that the trees cut and removed are not of spontaneous growth but were planted and maintained by the assessee. This is a question of fact. It cannot be said that the the said finding is based on no material. On the basis of the materials available before the Tribunal, we are of the view that the Appellate Tribunal was justified in holding that in the absence of any enquiry and data gathered by the department it was not open to the Revenue to tax the turnover relating to the trees felled by the assessee for these three years. WE are fortified in this view by a Division Bench of this Court in Deputy Commissioner of Sales Tax (Law) v. Kalpana Krishna Mohan [1985] 59 STC 316. The Appellate Tribunal was justified in holding that the turnover relating to the trees of spontaneous growth are not liable to be taxed under the Kerala General Sales Tax Act.