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1990 DIGILAW 29 (KER)

DEPUTY COMMISSIONER OF SALES TAX (LAW), BOARD OF REVENUE (TAXES), ERNAKULAM v. T. V. S. SAW MILLS.

1990-01-19

D.J.JAGANNADHA RAJU, K.S.PARIPOORNAN

body1990
JUDGMENT K. S. PARIPOORNAN, J. - In this tax revision case, the Revenue seeks to revise the order of the Sales Tax Appellate Tribunal dated 25th January, 1989 in T.A. No. 469 of 1985. The respondent assessee is doing business in timber logs and sizes at Trichur. The assessee sold an elephant in the assessment year 1980-81 for a consideration of Rs. 15,000. The proceeds received by the assessee from the sale of the elephant was included in the taxable turnover of the assessee. In appeal, this addition was sustained. In second appeal, the Sales Tax Appellate Tribunal held that the value realised by the sale of elephant cannot be included in the taxable turnover. It is thereafter the Revenue has come up in revision. 2. We heard counsel for the Revenue, Senior Government Pleader Mr. N. N. Divakaran Pillai, and also Mr. P. R. Raman, Advocate, who appeared at our request as amicus curiae. The following decisions were brought to our notice : Abraham v. Assistant Sales Tax Officer [1960] 11 STC 291 (Ker), Srinivasulu v. Deputy Commercial Tax Officer [1975] 35 STC 262 (AP) and Chiranjitlal Anand v. State of Assam [1975] 35 STC 442 (Gauhati). For the purpose of Sales Tax Act, goods may include animals. The proceeds obtained by the sale of the elephant may be taken in for the purpose of taxable turnover. Even so, the question is whether it could be said that the assessee was carrying on business as defined in section 2(vi)(b) of the Act to enable the sale proceeds of the elephant to be included in the taxable turnover. The assessing authority stated that the services of the elephant were fully utilised for the benefit of the business. There is no finding that the elephant formed part of the assets of the business carried on by the assessee. If that be so, the question will be different. The sale proceeds of a business asset can be included in the taxable turnover. There is no such finding on that score. The Appellate Assistant Commissioner did not consider that question at all. The Tribunal said that the sale of the elephant "does not answer the definition in section 2(vi)(b) of the Act". There is no finding that the elephant formed part of the assets of the business of the assessee. There is no such finding on that score. The Appellate Assistant Commissioner did not consider that question at all. The Tribunal said that the sale of the elephant "does not answer the definition in section 2(vi)(b) of the Act". There is no finding that the elephant formed part of the assets of the business of the assessee. In the absence of such finding, however wide the definition of the word "business" in section 2(vi)(b) of the Act may be, the sale proceeds cannot be included in the taxable turnover. We sustain the conclusion of the Appellate Tribunal. 3. The tax revision case is without merit. It is dismissed. We record our appreciation for the services rendered by Mr. P. R. Raman, Advocate. Petition dismissed.