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1998 DIGILAW 182 (KER)

Jaihind v. State of Kerala

1998-04-06

K.K.USHA, K.S.RADHAKRISHNAN, S.SANKARASUBBAN

body1998
Judgment :- K.S. Radhakrishnan, J. The question that has come up for consideration before us is whether the Tribunal is justified in taking the view that the return of gold with labour charges in exchange of gold ornaments, would amount to sale within the meaning of S.2(xxi) of the K.G.S.T. Act When these two tax revision cases came up for consideration before a Division Bench of this Court, the Bench doubted the correctness of the decision in Radha Printers, Kollam v. State of Kerala, 90 STC 201 ((1992) KLJ (TC) 379), and referred the matter to a Full Bench. T.R.C. No. 65 of 1993 is filed by the assessee and T.R.C. No. 77 of 1993 is filed by the Revenue. This arise out of a common order passed by the Sales Tax Appellate Tribunal, Additional Bench, Ernakulam, in T.A.No. 23 of 1991. 2. The assessee is a Jewellery borne on the file of the Assistant Commissioner (Assessment), Special Circle, Ernakulam. The assessment year in question is 1980-81. On verification of the accounts of the assessee, for the purpose of assessment under the K.G.S.T. Act, it was noticed that he had purchased 2293.480 gms. of gold ornaments from dealers outside the State giving in return equal quantity of gold with labour charges. The assessing authority took the view that the said transaction is interstate sale assessable under the C.S.T. Act It was therefore, proposed to assess the turnover under the said Act. 3. Assessee filed objections to the said proposal stating that the transaction in question was not a purchase or sale under the C.S.T. Act. Assessee contended that the gold supplied to dealers outside the State would not come within the definition of sale under the K.G.S.T. Act or C.S.T. Act. According to the assessee, the expression 'valuable consideration' under S.2(xxi)of the K.G.S.T. Act is intended to cover up only cheques, promissory notes and other negotiable instruments. Objections raised by the assessee were overruled holding that receipt of gold ornaments and entrustment of gold with labour charges subsequently are two independent transactions and have got the character of inter-state sale. 4. Aggrieved by the said order, assessee filed appeal before the Deputy Commissioner (Appeals), Ernakulam. Objections raised by the assessee were overruled holding that receipt of gold ornaments and entrustment of gold with labour charges subsequently are two independent transactions and have got the character of inter-state sale. 4. Aggrieved by the said order, assessee filed appeal before the Deputy Commissioner (Appeals), Ernakulam. Deputy Commissioner dismissed the appeal holding that the issue of gold to dealers outside the State is to be treated as a separate transaction, and there are no circumstances to hold that it was not consequent to a sale within the meaning of S.2(g) of the C.S.T. Act. Assessee preferred appeal before the Sales Tax Appellate Tribunal as T.A. No. 23 of 1991 against the order of the Deputy Commissioner (Appeals), Ernakulam. Tribunal mainly relied on the decision of the Madras High Court in V. P. Vadivel Achary v. Madras Sales Tax Appellate Tribunal, JI nd Addl. Bench, Madras, (1969) 23 STC 273, and took the view that there is an element of sale in the transaction of purchasing new readymade gold ornaments and in return giving gold of equal quantity with manufacturing charges. Tribunal therefore, found that the said transaction is a sale within the meaning of S.2(xxi) of the K.G.S.T.. Act. Tribunal, however, found that there was no inter-state sale so as to attract the C.S.T. Act, and therefore, the assessment made on the assessee under the C.S.T. Act was set aside. Aggrieved by the order of the Tribunal, assessee as well as the revenue have come up in revision before this Court. 5. The revision petitioner in T.R.C. No. 65 of 1993 has raised the following questions of law: 1. Whether on the facts and in the circumstances of the case the finding of the Tribunal that the supply of old gold by the petitioner to the non-resident persons in return for new ornaments received from them amounted to sale of old gold correct? Is me reasoning of Tribunal that the new ornaments received constituted valuable consideration for the sale of the old good within the meaning of the definition of sale in clause (xxi) of S.2 of the K.G.S.T. Act sustainable in law? 2,. Is me reasoning of Tribunal that the new ornaments received constituted valuable consideration for the sale of the old good within the meaning of the definition of sale in clause (xxi) of S.2 of the K.G.S.T. Act sustainable in law? 2,. Has not the Tribunal committed grave error and breach of judicial propriety in following 'the decision of the Madras High Court in Vadivel Achari 23 STC 273 in preference to the rul ing of mis Hon'ble High Court in Radhas Printers (1992) KLJ (Tax cases) 379 where this Court specifically dissented from the ruling of the Madras High Court in Vadivel Achari's case? The revenue in T.R.C. No. 77 of 1993 has also raised the following questions of law: 1. Whether in the facts and circumstances of the case the Tribunal was right in holding dial no prior contract for the sale has been established and order a movement of the goods purchased from Kerala to outside State as, a result of such contract has not been proved? 2. Whether in the facts and circumstances of the case the Tribunal was right in holding that there is no sale and there is only an exchange of goods? 3. Is the finding and conclusion arrived by the Tribunal justified in law? 6. We have heard counsel for the assessee Smt. Deepsur D. Jay an and also Senior Government Pleader Sri. V. V. Ashokan, Counsel for the assessee contended that there is no element of sale in the transaction and it is only an exchange of new articles for the old articles with same weight. According to her sale has been defined under S.2(xxi) of the K.G.S.T. Act as a transfer for cash or for other valuable consideration. Consideration was neither fixed nor contemplated between the assessee and his customers, either for the old gold or for the gold ornaments. What is collected from the customers is charges for covering the old gold into gold ornaments. Counsel also referred to definition of 'sale' under S.54 and of 'exchange' under S.118 of the Transfer of Property Act, 1882, and submitted that the meaning of term 'sale' is different from 'exchange' which is also known as barter. It is also submitted that sale under S.4 of the Sale of Goods Act, 1930 takes place when the property in goods has passed to the purchaser for a price, which generally means monetary consideration. It is also submitted that sale under S.4 of the Sale of Goods Act, 1930 takes place when the property in goods has passed to the purchaser for a price, which generally means monetary consideration. Counsel also urged that the expression'any other valuable consideration' under S.2(xxi) of the K.G.S.T. Act as well as under S.2(g) of the C.S.T. Act had to be confined to two preceding specific terms 'cash' and 'deferred payment'. 7. Learned Government Pleader however contended that since the definition of 'sale' in S.2(xxi) of the K.G.S.T. Act covers a transfer of property for cash as well as "other valuable consideration" it may include such consideration as gold which can be readily convertible into cash and it is as good as cash. According to him, it is not essential that the consideration of sale need entirely be paid in cash. It is also his case, the gold given in exchange could be converted into money and therefore the same would amount to 'valuable consideration' with the meaning of S.2(xxi) of the K.G.S.T. Act, which reads as follows: sale' with all its grammatical variations and cognate expressions means every transfer (whether in pursuance of a contract or not) of the property in goods by one person to another in the course of trade or business for cash or for deferred payment or other valuable consideration, but does not include a mortgage, hypothecation, charge or pledge." In order to constitute a sale it is necessary that there must be an agreement between the parties transferring title to goods which of course pre-supposes capacity to contract, that it must be supported by money consideration and that as a result of the transactions property must actually be passed in goods. The above mentioned definition clause also uses the word 'means'. When a statute says that a word or phrase shall 'mean' - not merely that it shall 'include' - certain things or acts, 'the definition is a hard and fast definition, and no other meaning can be assigned to the expression that is put down in definition'. A definition i s an explicit statement of the full connotation of a term: Punjab Land Development & Reclamation Corporation. Ltd. v. Presiding Officer, Labour Court, (1990) 3 SCC 682. 8. The essence of sale also lies in the transfer of property 'for cash or for deferred payment or for other valuable consideration'. A definition i s an explicit statement of the full connotation of a term: Punjab Land Development & Reclamation Corporation. Ltd. v. Presiding Officer, Labour Court, (1990) 3 SCC 682. 8. The essence of sale also lies in the transfer of property 'for cash or for deferred payment or for other valuable consideration'. The definition of 'sale' contained in the K.G.S.T. Act cannot be construed to include within its ambit those transactions which do not fall within the definition of 'sale' contained in the Sale of Goods Act, and the definition in the Sales Tax Act, must therefore, be construed accordingly. S.4 of the Sale of Goods Act defines 'sale' as a transaction whereby there is transfer of property in goods to the buyer for a price. S.2(10) of the Sale of Goods Act defines 'price as money consideration for a sale of goods.' Thus in order that a transaction may amount to a sale in accordance with the Sale of Goods Act, the consideration has to be money. 9. A transaction like the one with which we are concerned wherein the substantial consideration is supply of gold and money part represents the labour charges cannot be construed as amounting to sale within the meaning of Sale of Goods Act. The definition of sale' given in S.2(xxi) of the Act should also therefore, be construed similarly. The words 'other valuable consideration' in the context have to be considered as equated with money, the word money being wider than cash. 10. In State of Madras, v. Gannon Dunkerley & Co., (1958) IX STC 353, the Supreme Court considered the meaning of the words 'other valuable consideration' contained in the Madras General Sales Tax Act. After examining the scope of the Act vis-a-vis the Sale of Goods Act, 1930, the Supreme Court held that sale of goods must be construed in the sense in which they occur in the Sale of Goods Act. The words 'other valuable consideration' which occur in S.2(h) of the Madras General Sales Tax Act and which do not find a place in the definition of 'sale' in the Sale of Goods Act were held to be ultra vires the scope of the Provincial or State Legislature. The words 'other valuable consideration' which occur in S.2(h) of the Madras General Sales Tax Act and which do not find a place in the definition of 'sale' in the Sale of Goods Act were held to be ultra vires the scope of the Provincial or State Legislature. It was further held that in order to constitute a sale it is necessary, among other things, that there should be an agreement between the parties for the purpose of transferring the title to goods, which of course, presupposes capacity to contract, and that it must be supported by money consideration. If the consideration for the transfer was not money, but other valuable consideration, it may then be exchange or barter, but not a sale, Supreme Court held. 11. Supreme Court had occasion to consider a similar question in Devi Dass Gopal Krishnan v. State of Punjab, (1967) 20 STC 430, while construing S.2(h) of the Punjab General Sales Tax Act, 1948, defining 'sale', which is analogous to S.2(xxi) of Kerala Act, Supreme Court held: "New, coming to the expression x price' it is no doubt defined in the Sale of Goods Act as money consideration'. Cash or deferred payment in clause (ff) of S.2 of the Act satisfies the said definition. The expression 'valuable consideration' has a wider connotation, but the said expression is also used in the same collocation in the definition of sale' in S.2(h) of the Act. The said expression must bear the same meaning in clause (ff) and clause (h) of S.2 of the Act. It may also be noted that in most of the Sales Tax Acts, the same three expressions are used. It has never been argued or decided that the said expression means other than monetary consideration. This consistent legislative practice cannot be ignored. The expression* valuable consideration' takes colour from the preceding expression cash or deferred payment'. If so, it can only mean some other monetary payment in the nature of cash or deferred payment." In view of the above mentioned principle laid down by the Supreme Court, the expression'cash or deferred payment or other valuable consideration' used in the definition of sale in S.2(xxi) of the K.G.S.T. Act has to be construed to mean cash or some other monetary payment. 12. 12. The Allahabad High Court had occasion to consider a similar question in Sales Tax Commissioner v. Ram Kumar Agarwal, (1967) 19 STC 400. The question that came up for consideration before the Court was whether the giving of bullion by a dealer in exchange for purchase of ready-made ornaments manufactured by goldsmith is a 'sale of bullion' within the meaning of the U.P. Sales Tax Act or is a barter or exchange transaction. The Court took the view that obtaining new ornaments by giving in exchange bullion from the assessee plus manufacturing charges to the goldsmith did not amount to a sale of bullion and as such that part of the transaction was not liable locales tax under the U.P. Sales Tax Act. Allahabad High Court following the decision of the Supreme Court in State of Madras v. Gannon Dunkerley & Co. (1958) 9 STC 353 held that it is difficult, if not impossible, to equate bullion with cash or coins, cheques or a negotiable instrument, when gold bullion, an item of stock-in-trade was exchanged with that of assessee. The definition of bullion is 'in coined gold and silver in mass'. Bullion is not sovereign or guinea and as such, particularly when it happens to constitute the stock-in-trade of the assessee's business, it cannot be treated as cash or deferred cash payment within the meaning of S.2(h) of the Act, and therefore, will not satisfy the definition of 'sale' in the Sale of Goods Act, which has the same meaning as in the U.P. Sales Tax Act. 13. The Madhya-Pradesh High Court in Commissioner of Sales Tax v. Kansari UdyogShakariSamiti (1979) 43 STC 176 again followed the decision of the Supreme Court in Gannon Dunkerley's case. It was- a case where the assessee manufactured utensils made of kansa (an alloy) and supplied readymade 'kansa' utensils to the customers for a consideration which is equal in weight of kansajn the shape of old goods and some money considered as labour charges including profit. Question arose as to whether the transaction amounted to sale within the meaning of S.2(n) of the M.P. General Sales Tax Act. Madhya Pradesh High Court followed the principle laid down by the Allahabad High Court in Ram Kumar Agarwal's case and took the view that the words 'other valuable consideration' in S.2(n) havet6 be construed as equated with money, the word'money' being wider than'cash'. Madhya Pradesh High Court followed the principle laid down by the Allahabad High Court in Ram Kumar Agarwal's case and took the view that the words 'other valuable consideration' in S.2(n) havet6 be construed as equated with money, the word'money' being wider than'cash'. It was held in order that a transaction may amount to a sale, the consideration has to be money. A transaction wherein the substantial consideration is the supply of an equal amount of raw material and the money part represents only the labour charges cannot be treated as amounting to sale under the M.P. General Sales Tax Act. 14., The Gauhati High Court in Assam Oil Company Ltd. v. Commissioner of Taxes, Guwahati, (1991) 81 STC 37 also considered the expression'valuable consideration' . That was a case where the assessee, a manufacturer in the State of Assam of petroleum and petroleum products, despatched certain quantities of goods to three companies outside the State. The companies later in turn supplied goods of equivalent value to the agent at different places outside the State. The agent thereafter remitted the monetary value of such goods to the applicant. On the question whether it was a sale within the meaning of S.2(g) of the C.S.T. Act, the Court followed the principle laid down by the Supreme Court in Devidass Gopalkrishnan's case, and held that the transaction would not amount to sale under the C.S.T. Act, eventhough the Court held that the transfer of property in the goods to the companies so far as the applicant was concerned had taken place for 'deferred payment' and therefore, the transaction was 'sale' within the meaning of S.2(g) of the Act. 15. andra Pradesh High Court recently analysed various decisions on the question in Vij ay a Aluminium Industries v. State of A.P. (1996) 103.STC 508. That was a case where the assessee converted aluminium scrap collected as such or-in the shape of old aluminium articles from customers, and after converting them into new aluminium articles, supplied them to the same customers, charging labour charges. The weight of the old articles or scrap was the same as that of the new articles. The price of the scrap or old articles or the new articles was nowhere mentioned in the bills. Question arose as to whimper such a transaction would amount to sale of new articles under S.2(n) of the A.P. General Sales Tax Act. The weight of the old articles or scrap was the same as that of the new articles. The price of the scrap or old articles or the new articles was nowhere mentioned in the bills. Question arose as to whimper such a transaction would amount to sale of new articles under S.2(n) of the A.P. General Sales Tax Act. The Court took the view that the expression'cash or deferred payment or other valuable consideration' used in the definition of 'sale' under S.2(n) of the Act has to be construed to mean cash and not any mode of payment other than cash. 16. Almost identical question came up for consideration before the Madras High Court in South India Metal Works and Rolling Mills, (I960)11 STC 507. That was a case where the assessee collected scrap materials from its customers, melted the scrap, manufactured sheets and rings and gave back to the customers the new sheets and rings after collecting labour charges, the total weight of the scrap tallied with the total weight of the sheets and rings. The Madras High Court held-that there was no question of purchase when the scrap metal was entrusted by the customer to the assessee, nor was there any sale as such of the brass and copper sheets or rings. It was noted that the assessee collected scrap from a number of customers, had all that scrap melted, manufactured sheets and rings, and gave back the customers the exact weight, but in new sheets and rings. It was held the identity of the new sheets and rings could not be correlated to and established with the scrap supplied by the customer is not really germane in deciding the real question at issue - was there a sale or purchase at any time either when the assessee took over the scrap for the specific purpose of melting it and covering it into sheets and rings, or when there was a delivery of the finished products, that is, sheets and rings, by the assessee to the customer. 17. 17. Identical question came up for consideration again before the Madras High Court in Raju Chettiar and Brothers v. State of Madras, (1955) 6 STC 131, where the Madras -High Court held that there was no purchase of the scrap by the assessee and no acquisition of property in the scrap metal, it is a little difficult to understand the basis for the view that, when the sheets and rings were made over to the customer there was a sale involving an element of transfer of property. 18. Following the decision of the Madras High Court in South India Metal Works and Rolling Mills, that Court in Vishweshwaradas Gokuldass v. Government of Madras, (1962) 13 STC 113 held that where the aluminium scrap collected was converted into aluminium circles and supplied in equal weight after collecting labour charges, transaction was not a sale. 19. The principle that can be deducted from the above decisions is that receipt of gold ornaments in exchange of gold with labour charges would not come within the definition of 'sale' under S.2(xxi) of the K.G.S.T. Act. The words 'other valuable consideration', which occur in S.2(xxi) of the Act can be interpreted by rules of ejusdum generis, the payment of cheque, bills of exchange or other negotiable instruments. The words 'deferred payment or other valuable consideration' used in S.2(xxi) of the K.G.S.T. Act merely enlarge the ambit of the consideration beyond cash, but do not carry it outside the scope of the term'money'. In the present case, gold is an item of stock-in-trade which was exchanged for ornaments which also formed part of the stock-in-trade of the assessee's business. It is difficult to equate gold with coins, or cheque or negotiable instruments. 20. Learned Government Pleader placed much reliance on three decisions of the Madras High Court. Madras High Court in Jayarama Chettiar in Re,1 STC 168 considered the scope of expression 'sale' under S.2(h) of the Madras Sales Tax Act read with S.15(a) of the Sale of Goods Act. According to the Madras High Court, in order to bring a transaction within the ambit of the term' sale' as defined in the Madras General Sales Tax Act, money alone need not necessarily be the consideration. According to the Madras High Court, in order to bring a transaction within the ambit of the term' sale' as defined in the Madras General Sales Tax Act, money alone need not necessarily be the consideration. That was a case where a dealer in silver transferred to a purchaser the property in a finished silver article in exchange for an equivalent weight in silver along with a sum of money equal to the manufacturing or making charges. Similar is the view taken by the Madras High Court in V.P. Vadivel Achari v. Madras Sales Tax Appellate Tribunal, Second Addl. Bench, Madras (1969) 23 STC 273. According to the Court'other valuable consideration' in the definition of sale in the Madras General Sales Tax Act, means some other monetary payment in the nature of cash or deferred payment. Money is not necessary confined to coins or currency notes, but has a wider connotation and sense. Gold being in the nature of money, payment by gold may be regarded as payment in the nature of cash or as money consideration in the context of sale of goods. 21. Premier Electro Mechanical Fabricators v. The State of Tamil Nadu, (1984) 55 STC 371, is a case where the assessee sold items of machinery to a private limited company. The parties first agreed about the sale and followed up that bargain by further agreeing that the liability of the company for payment of the sale consideration has to be discharged by the issue to the petitioner of fully paid-up shares in the company. The assessing authority brought the aggregate sale value of items of the machinery to assessment rejecting the contention of the assessee that the transactions were not sale but only a barter or exchange as the consideration received by the assessee was not cash, but only the equity shares of that very company. While considering the words 'other valuable consideration' the court held that it was a sale within the meaning of 'sale' under the Tamil Nadu General Sales Tax Act. Eventhough reliance on the Supreme Court decision in Devidass Gopalakrishnan was placed, the Madras High Court took the view that the Supreme Court noted the goods passed is something akin to cash or deferred payment. 22. Eventhough reliance on the Supreme Court decision in Devidass Gopalakrishnan was placed, the Madras High Court took the view that the Supreme Court noted the goods passed is something akin to cash or deferred payment. 22. We are afraid that we cannot agree with the view taken by the Madras High Court on the scope and ambit of the term 'sale' in the light of the decisions of the Supreme Court in Gannon Dunkerley's case and Gopalakrishnan's case. Supreme Court in Gannon Dunkerley & Co.'s case has categorically held that in order to constitute sale, there must be an agreement between the parties, for the purpose of transferring the title to goods, which of course presupposes capacity to contract and that must be supported by money consideration. According to the Supreme Court, if the consideration is not money, but for other valuable consideration, it can then only be not a sale. Same is the view taken by the Supreme Court in Devidass Gopalakrishnan's case. 23. We are of the view that when gold was an item of stock-in-trade and it was exchanged for ornaments which also formed part of the stock-in-trade of the assessee's business, it is difficult to equate gold with cash or cheque or negotiable instrument. The words 'valuable consideration' can only be interpreted on the basis of rules of ejusdum generis, as payment by cheques, bills of exchange, and other negotiable instruments. They cannot cover a case when no price is paid, and it is merely one of exchange or barter. We may also notice in this connection that the term 'money' has a legal meaning as well as a popular sense, both of which bar the inclusion of gold or metal of any kind as such in the concept of 'money'. When gold forms part of the stock-in-trade of the assessee's business, it cannot be treated as cash or deferred cash payment within the meaning of S.2(xxi) of the K.G.S.T. Act. Therefore, the transaction would only satisfy the definition of sale. We are of the view that the decision in V.P. Vadivel Achary's case, Jayarama Chettiarin Re's case, and Premier Electro Mechanical Fabricators are not correctly decided by the Madras High Court, in view of the various decisions of the Supreme Court and other High Courts already referred to. 24. Therefore, the transaction would only satisfy the definition of sale. We are of the view that the decision in V.P. Vadivel Achary's case, Jayarama Chettiarin Re's case, and Premier Electro Mechanical Fabricators are not correctly decided by the Madras High Court, in view of the various decisions of the Supreme Court and other High Courts already referred to. 24. It is well settled that the burden is on the revenue to establish that a particular transaction would satisfy the expression 'sale' and consequently liable to incidence of tax under the relevant statute. In Bengal Immunity Co. Ltd. v. State of Bihar, (1955) 6 STC 446, it was held that sale could be said to be in the course of inter-state trade only if two conditions concur, namely, (a) a sale of goods, and (b) a transport of those goods from one State to another. Unless both these conditions were satisfied, there could be no sale in the course of inter-state trade. There must be evidence-that the transportation was occasioned by the contract, and as a result of goods moved out of the bargain between the parties from one State to another. This position was upheld by the Supreme Court in Commissioner of Sales Tax v. Suresh Chand Jain (1988) 70 STC 45. In the instant case, revenue has not established the above mentioned ingredients, so as to establish that there was inter-state sale and consequently, it is liable to be taxed under the C S T. Act. Therefore; we are of the view that the assessee is not liable to be taxed under the C.S.T. Act, and the Tribunal has correctly held so. Since we have already found that transaction involved in the case would not come within the definition of sale' within the meaning of S.2(xxi) of the K.G.S.T. Act, question of applicability of S.2(g) of the C.S.T. Act does not arise. 25. We therefore hold that the exchange of old gold with labour charges in return of gold ornaments would not come within the definition of 'sale' under S.2(xxi) of K.G.S.T. Act. The expression'cash or deferred payment or other valuable consideration' used in the definition clause has to be considered to mean cash or some other monetary payment. 25. We therefore hold that the exchange of old gold with labour charges in return of gold ornaments would not come within the definition of 'sale' under S.2(xxi) of K.G.S.T. Act. The expression'cash or deferred payment or other valuable consideration' used in the definition clause has to be considered to mean cash or some other monetary payment. We are therefore of the view that the decision in Radha Printers, case 90 STC 201 does not require reconsideration and has correctly decided on the basis of the various decisions of the Supreme Court. We respectfully disagree with the decision of the Madras High Court in Vadivel Acharya's case and fayararn Ch-ettiar's' case referred to above. 26. In view of the abovementioned reasons, we hold that the finding of the Kerala Sales Tax Appellate Tribunal in T. A. 23/91 that there was no element of 'sale' within the meaning of S.2(xxi) of the 'K.G.S.T. Act in the transaction entered into by the assessee with the supplier of the gold ornaments from outside the State, is unsustainable in law. We affirm the finding of the Tribunal that the assessee is not liable to be taxed under the Central Sales Tax Act. In the result the assessment order dated 7.8.1989 passed by the Asst. Commissioner (Assessment), Special Circle against the assessee for the year 1980-81 is set aside. T.R.C. 65/93 filed by the assessee is allowed and T.R.C. 77/93 filed by the Revenue is dismissed.