Judgment : Ramesh Ranganathan, J. These Tax Revision Cases are preferred, under Section 22(1) of the Andhra Pradesh General Sales Tax Act, 1957, (hereinafter called the Act), against the order of the Sales Tax Appellate Tribunal (STAT for short) in T.A.No.75 of 2004 and batch dated 29.01.2007. The respondent, in these Tax Revision Cases, manufactures paper and paper boards, and is a company registered under the Companies Act. They established an industrial unit, at Sarapaka village, Khammam District - a schedule area, for manufacture of paper and paperboards. They commenced commercial production from 01.10.1979. Agreements were entered into, from time to time, between the Government of Andhra Pradesh and the respondent-company for grant of long term leases of forest land for making bamboo available, for the consumption of the respondent, at their paper mills. The assessing authority assessed the respondent-company to tax for the five assessment years 1994-1995 to 1998-1999. The Deputy Commissioner (CT), Warangal verified the assessment records and, on noticing that the purchase value of bamboo cut bundles were not brought to tax by the assessing authority, issued pre-revision show cause notice dated 27.02.2002 calling upon the respondent-company to submit their objections to the proposal to bring the bamboo cut bundles to tax under Section 6-A of the Act. The respondent-company, relying on the judgments of the Supreme Court in State of Orissa v. Titaghur Paper Mills Co. Ltd. and of a Division Bench of this Court in Andhra Pradesh Paper Mills Ltd. v. Government of Andhra Pradesh, contended that the lease agreements, between the Government of Andhra Pradesh and themselves, was not for sale of bamboo cut bundles; and any benefit which the respondent may have received from the leased land was a profit a prendre, and did not fall within the ambit of the provisions of the Act. The Revisional Authority classified the subject leases into two categories; the first category of leases where the respondent-company had extracted bamboo, and had transported it for consumption in their mills; and the second category of leases where the forest department had extracted bamboo, cut them to sizes, made them into bundles, and had collected extracting charges, and the selling price on such goods, from the respondent-company. The second category of transactions were brought to tax under Section 6-A of the Act. Aggrieved thereby, the respondent-company carried the matter in appeal to the STAT. The second category of transactions were brought to tax under Section 6-A of the Act. Aggrieved thereby, the respondent-company carried the matter in appeal to the STAT. In the orders under revision, the STAT extracted certain clauses of the agreement, and held that the respondent-company had extracted bamboo, from the allotted coupes, exercising their leasehold rights; bamboo was felled and collected by them; in the second type of transactions, the forest department had extracted and supplied bamboo and, in such cases, the respondent-company used to pay extraction charges, in addition to the selling price; in the first category of transactions, bamboo was collected from the lease hold areas of the forest department; in the latter category of cases also, the yield from the leasehold property was handed over to the lessee by the lessor after payment of certain charges; the relevant clauses of the agreement showed that the respondent was required to undertake silviculture operations in the leased land; on the date of the agreement, the goods were un-ascertained goods; there was no transfer of property unless and until the goods were ascertained; the agreement was conditional, and the goods were not in a deliverable state, on the date of the agreement; the Division Bench of the High Court of A.P, in Andhra Pradesh Paper Mills Ltd.2, had held that if, on the date of the contract, the goods were to be treated as unascertained goods, no property in them would get transferred unless and until the goods were ascertained; if the goods were to be treated as specific or ascertained goods, passing of property depended on the intention of the parties to be gathered from the agreement; where the goods are unascertained, the further requirement is that they must be in a deliverable state; the property passes when the goods are unconditionally appropriated to the contract; the bamboos were not removable even after they were cut unless they were weighed, the royalty was determined, permits were granted after the officials were satisfied that there was no illicit felling, no money was due, and the terms of the contract or the statute were not violated; when the agreement was entered into, the subject quantity of bamboos were not in a deliverable state; as such, there was no sale within the purview of the Act; the agreement could not be called a long term selling arrangement; though, prior to removal of bamboos, liability, with regards theft, fire and floods or other causes, was placed on the lessee; normally such a risk was not placed on the buyer unless ownership had passed; the agreement clauses specifically stated that bamboos shall be considered to have passed into the possession of the lessee-paper mills, for the purpose of this clause; the said clause was applicable in cases where, in terms of Section 26 of the Sale of Goods Act, the parties had otherwise agreed for passing of the risk before passing of title; in the present case, it is only a grant of a profit a prendre or a right in immovable property, and not the sale of bamboos after they have been put in a deliverable state; even if the department has extracted bamboos, cut them into sizes, made them into bundles and collected extracting charges, they were subject to the terms and conditions of the agreement entered into between the respondent and the forest department; and, on the date of agreement, the goods were not specific and were not in a deliverable state. The appeals were allowed, and the orders of the revisional authority were set aside. Aggrieved thereby, the present TRCs. Elaborate submissions were put forth by Sri M.V.J.K. Kumar, Learned Counsel for the petitioner and Sri M. Govind Reddy, Learned Special Standing Counsel for Commercial Taxes. It is necessary, at the outset, to briefly note the relevant clauses of the agreement, and the provisions of the Act. I. RELEVANT CLAUSES OF THE AGREEMENT: The question whether there is a "sale" under the contract has to be decided on the basis of (i) the terms of the contract, (ii) the statutory provisions, and (iii) the principles laid down in Titaghur Paper Mills Co. Ltd.1; Andhra Pradesh Paper Mills Ltd.2. In examining the terms of the contract, it must be borne in mind that the rule of construction, applicable to all written instruments, is that the instrument must be construed as a whole in order to ascertain the true meaning of its several clauses, and the words of each clause must be so interpreted as to bring them into harmony with the other provisions of the instrument, if that interpretation does no violence to the meaning of which they are naturally susceptible. The best construction of deeds is to make one part of the deed expound the other, and to make all the parts agree. Effect must, as far as possible, be given to every word and every clause. Just as a document cannot be interpreted by picking out only a few clauses ignoring the other relevant ones, in the same way the nature and meaning of a document cannot be determined by its end-result or one of the results or the consequences which flow from it. The nomenclature and description given to a contract is not determinative of the real nature of the document or of the transactions thereunder. It must be determined from all the terms and clauses of the document and all the rights and results flowing therefrom, and not by picking and choosing certain clauses and the ultimate effect or result. The real nature of a document and the transaction thereunder have to be determined, with reference to all the terms and clauses of that document, and all the rights and results flowing therefrom. (Titaghur Paper Mills Co. Ltd.1; Halsbury's Laws of England, 'Fourth Edition, Volume 12, paragraph 1469 at page 602). The real nature of a document and the transaction thereunder have to be determined, with reference to all the terms and clauses of that document, and all the rights and results flowing therefrom. (Titaghur Paper Mills Co. Ltd.1; Halsbury's Laws of England, 'Fourth Edition, Volume 12, paragraph 1469 at page 602). The subject agreement was entered into between the respondent-company and the Governor of Andhra Pradesh represented by the Principal Chief Conservator of Forests. Clause V(1) thereof stipulated that the lessee shall, during the period of the agreement, be entitled to fell, collect, store and remove, subject to the conditions and restrictions mentioned in the agreement, all the stocks of bamboos now growing, or are likely to grow on the lands in the leased areas mentioned in the schedule, other than those from the plantations; all or any of the stock of the removals of which any person, now or may at any time or times hereafter, be entitled under the provisions of the Andhra Pradesh Forest Act, 1967, or under any rule or proceedings of the Forest Department of the Government of Andhra Pradesh (hereinafter called the Government); and those bamboos specially reserved under the agreement for felling and removal in accordance with the silviculture requirements and prescriptions of the working plan, that may be revised from time to time by the Forest Department. Clause V(2) provided for the lease agreement to be valid for a period of six years. In terms of sub-clause (3), the lessee (respondent-company) was allotted bamboo coupes, as per the Schedule to the agreement, on lease every year in advance to be worked out by them for extracting approximately 60,000 MTs (Sixty thousand metric tones) of bamboo per annum. This quantity, of approximately 60,000 Mts, was subject to silvicultural availability of bamboos in the forest areas allotted to them, from the raw material catchment of the lessor; any quantity extracted, in excess of 60,000 M.Ts. in any lease year, was permitted to be removed and transported at the selling price applicable to the succeeding lease year; and such excess quantity of bamboos was not to be set off against the lessees entitlement of the subsequent lease year(s). in any lease year, was permitted to be removed and transported at the selling price applicable to the succeeding lease year; and such excess quantity of bamboos was not to be set off against the lessees entitlement of the subsequent lease year(s). Under sub-clause (5)(a) a sum, equivalent to 7 % (seven and half percent) of the selling price, was payable by the lessee, on the quantity of bamboos extracted and weighed, to compensate the Government for the loss of moisture in bamboo, arising from its permission to the Company to transport the bamboos extracted in any lease year, until the 31st day of March of the succeeding lease year. Sub-clause 5(b) stipulated that, if bamboos were extracted and supplied by the Department, the Mills would be liable to pay, to the Department, extraction and other charges upto the point of delivery as may be incurred by the department besides selling price; and the terms and conditions for supply of the departmentally extracted bamboos and industrial cuts was as indicated in the Annexure to the agreement. Under sub-clause (7), the lessee was required to be intimated the coupes, to be worked out by them, situated in any or all of the Divisions indicated in the Schedule; the Lessee was required to work in the leased areas in accordance with the prescriptions of the working plans in force, and any subsequent changes made from time to time; the Lessee was required to work only in one coupe in the year in each of the felling series prescribed in the working plan, and allotted under the agreement; each coupe was demarcated by natural boundaries such as roads and paths as indicated in the working plan; and the Lessee was required, before starting work in the coupe, to furnish to the Range officer concerned, a written statement to the effect that they had taken charge of the coupe in the leased area. Sub-clause (8) enabled the Lessee to remove/transport the extracted bamboo, within six months of the expiry of the lease year, without any penalty and by paying the selling price at the rates applicable to the year of extraction. Sub-clause (8) enabled the Lessee to remove/transport the extracted bamboo, within six months of the expiry of the lease year, without any penalty and by paying the selling price at the rates applicable to the year of extraction. Under sub-clause (10), the selling price was to be charged on the basis of weighment of the bamboos at the lessees mill gate or at a mutually agreed weigh bridge; and the expenditure towards weighment, and other incidentals, was to be borne by the lessee. Sub-clause (13) stipulated that a sum of rupees Rs.1,00,000/-(Rupees one lakh only) in cash should be deposited by the Lessee with the officer appointed by the Prl. Chief Conservator of Forests for due fulfillment of any or every one of the conditions of the agreement; the Divisional Forest Officer concerned was empowered to issue orders, for forfeiture of the security deposit, for breach of the conditions; the Lessee was disentitled from claiming any compensatory area in lieu of the areas assigned, alienated, dereserved or otherwise excluded for any purpose from the leased areas by the Lessor or the Prl. Chief Conservator of Forests under the provisions of the Agreement; and the Lessor was required to effect the supply of assured quantity of bamboos as far as possible. Sub-clause (16) required the Lessee to carry out silviculture operations, wherever they carried on extraction operations, for improvement of the bamboo forests; the soil was to be worked around the bamboo clumps, and put in the shape of a mound over the clump to a height of 0.50 to 1.00 mt; fire protection measures were required to be taken wherever needed; the silviculture operations were required to be completed by the mill (respondent-company), in the year of working itself, or in 2(two) years spells, subject to completion of operations over a minimum of 50% (one half) of the worked area in the year of working itself; and the balance area was required to be completed during the working period in the next felling cycle. Sub-clause (17)(a) required the lessee to commence work from one corner of the coupe, and to proceed with the felling evenly throughout the coupe (i) refraining from felling all immature culms less than one year old; (ii) reserving atleast 6 mature culms over one year old in each clump; (iii) felling of culms, permitted to be extracted, being maintained to be not below the second node from ground level, and in any case not higher than 30 cm. from the ground level; and (iv) removing the whole or a cut culm and its branches from every clump completely. Sub-clause 17(b) stipulated that the felling rules were subject to modification that may be made by the Forest Department in accordance with the silviculture requirements and working plan prescriptions. Sub-clause 17(c) of the agreement required the Lessee to convert all bamboos, as and when felled, into billets approximately two meters in length. Sub-clause 17(d) prohibited the lessee from engaging or employing labour or cartmen, already employed by the Forest Department, for any work under the agreement without obtaining the previous written permission of the Range Officer. Sub-clause (18) stipulated that the working season, of each of the annual coupe of the series, was from the 1st October of the year to the 30th September of the succeeding year; the Lessee should not cut any bamboo during the monsoon period i.e., 1st July to 30th September; and they may remove the felled material and form roads, in the coupes to be leased in the subsequent lease year, during this period. Under sub-clause (19)(1), the Lessee was entitled to inspect the coupe, under working, jointly with the concerned Range Officer regularly at the end of each quarter of the annual working season and rectify the defects, if any, pointed out by the inspecting officer during the lease period. Sub-clause (19)(2) stipulated that, on completion of work in each coupe, the Lessee should forthwith give a written notice thereof to the Range Officer, and the Range Officer should, within thirty (30) days of receipt of such notice, inspect the work and take possession of the coupe and submit the result of such working to the Divisional Forest Officer concerned; and, on receipt of the report, the Divisional Forest Officer could issue orders to the lessee to pay compensation for the damages. Sub-clause (21) empowered the Divisional Forest Officer to serve upon the Lessee a written order prohibiting them from felling, collecting, storing or removing any stock in any part of the leased area or collecting such stock or regulating the storage and removal thereof. The Lessee was not entitled to claim compensation for any loss they may have incurred by carrying out such order, nor for any loss caused to them by their being prevented or obstructed by any land owner or other person on the plea of right of ownership, right of enjoyment or otherwise from felling, collecting, storing or removing any of the stock. Sub-clause (22) required the lessee to take all possible precautions to protect the bamboos from loss by theft, fire and floods and other causes and natural calamities. The lessee was not entitled to compensation by the Lessor for any loss which may be incurred by him because of fire, floods, or other causes during the period of the Agreement. In case, subsequent to felling and prior to weighment, the bamboo pieces, bundles or stocks were lost either due to theft, fire, floods or natural calamities, the Lessee was required to pay to the Lessor the value of all such bamboos, as assessed by the Divisional Forest Officer, at the same rate in force at the time of occurrence of the incident. The bamboos were required to be considered to have passed into the possession of the Lessee (paper Mills), for the purpose of this clause, from the time they were cut, and selling price was payable for all bamboos that had been cut. Sub-clause (23) required the lessee not to dispose of or sublet the lease, or any part thereof, without obtaining the previous permission in writing of the lessor. Sub-clause (24) enabled the lessee, with the previous permission of the Divisional Forest Officer, to construct roads, bridle-paths, store houses and depots etc., in the leased area for the economical exploitation of bamboos, on such specifications as may be prescribed by the Divisional Forest Officer. Sub-clause (25) stipulated that, on the expiry or on the termination of the lease, all structures and communications, within the leasehold areas, should be left undisturbed, and would become the property of the Government, and the Lessee would have no right to claim any compensation thereof. Sub-clause (25) stipulated that, on the expiry or on the termination of the lease, all structures and communications, within the leasehold areas, should be left undisturbed, and would become the property of the Government, and the Lessee would have no right to claim any compensation thereof. Sub-clause (26) stipulated that the bamboos, obtained by the Lessee from the coupes, should be utilized only for the manufacture of paper at their paper mills, and should not be used for any other purposes; the selling price fixed was to be applicable for the bamboos that were actually utilized for the purpose of manufacture of paper; and if the bamboos were used for any purpose, other than those mentioned above, prior permission of the Prl. Chief Conservator of Forests was required to be obtained by the Lessee; and a higher selling price was chargeable as was fixed by the Prl. Chief Conservator of Forests. Sub-clause (34) made the Lessee liable to pay all taxes under the laws in force from time to time. Sub-clause (36) required the Lessee, or their authorized agent, to personally supervise and control the working in the coupes. Sub-clause (37) provided that, if any fire or forest offence occurred in the vicinity of the leased area, the Lessee, their agent, and their employees should render every assistance in extinguishing the fire and apprehending the offender or offenders, and to give immediate notice of the occurrence of the fire or offence to the nearest Forest or Police or Revenue Officials. Sub-clause (39) required the planning, execution and supervision of all forestry operations, involved in the extraction of all forest raw material by the Lessee in the leased forest areas, to be done only by technically qualified and professionally skilled forestry trained officers. The schedule to the agreement related to silviculturally available bamboos in the forests of a specified District. Under condition (1) of the Annexure thereto, the company was required to take delivery of the material allotted to them from the departmentally extracted coupes at the forest depots as decided by the concerned Divisional Forest Officers, and the said bamboo was required to be used only for the purpose of manufacturing paper and allied products by the company itself. Under condition (1) of the Annexure thereto, the company was required to take delivery of the material allotted to them from the departmentally extracted coupes at the forest depots as decided by the concerned Divisional Forest Officers, and the said bamboo was required to be used only for the purpose of manufacturing paper and allied products by the company itself. Condition (2) stipulated that the company was bound to take delivery of all bamboo within fifteen days of the issue of the notice, made available at the depots fixed by the concerned Divisional Forest Officers; and the Forest Department was not liable for any loss or damage to such bamboo taken delivery of by the company. Condition (3) stipulated that (i) the Company could remove/transport the delivered departmentally extracted bamboo, within a period of six months after the expiry of the bamboo lease year, without any penalty and by paying selling price at the rate applicable to the year of extraction; (ii) in the event of the transportation of the delivered bamboo in a particular lease year taking place after 31st March following, such quantum of bamboo would be charged (a) selling price at the rate applicable to the lease year of extraction, and (b) penalty at the selling price applicable to the lease year in which the bamboo is transported; and (iii) a sum equivalent to 7 % of the selling price shall be payable by the mills, on the quantity of bamboo weighed, to compensate the Government, for the loss of moisture in bamboo, arising from its permission to the company to transport the bamboo extracted in any lease year until the 31st day of March of the succeeding lease year. Condition (4) stipulated that, to facilitate delivery and accounting of the bamboos to be supplied to the Company, the following procedure should be adopted. All the billeted bamboos were required to be tied, with double strand string at both ends, into bundles which was to consist of 20 pieces. No bamboo pieces should be less than 4 cms. in girth at the thin end. Each full bundle was to consist of 2 mt. long pieces, each half bundle should consist of 100 to 200 cms long pieces, and each 1/4th bundle should consist of less than 100 cms. pieces. No bamboo pieces should be less than 4 cms. in girth at the thin end. Each full bundle was to consist of 2 mt. long pieces, each half bundle should consist of 100 to 200 cms long pieces, and each 1/4th bundle should consist of less than 100 cms. pieces. Condition (5) required the company to maintain an accurate and proper account, from time to time, of the said produce taken delivery of and transported by them as stipulated by the Forest Department. Condition (6) stipulated that the extraction and supervision charges, payable by the company, shall be Rs.266/- for 80 full bundles of bamboo industrial cuts for the first year, for each of the subsequent years, in a block of 3 years, the charges payable by the company shall be fixed at 11% above the charges fixed for the preceding year, and the figure will be rounded off to the nearest rupee. Condition (7) stipulated that (i) supply of industrial cuts shall be made after the company pays half the amount of extraction charges at the rates mentioned at Condition No.6 above, against the total allotment for that particular year; after making good the supplies against this half of the amount of extraction charges, the company was required to be given a notice to make payment of the balance half of the amount of extraction charges against the allotted quantity, and such amount was required to be paid within 15 days of such notice; the amount so paid was to be adjusted after the bamboo was actually weighed at the weigh bridge located at the mill gate, or at a mutually agreed place; any amount, paid in excess, was to be adjusted against future supplies of industrial cuts from the departmentally worked coupes or against the selling price for the supplies effected from bamboo coupes allotted to the company; and (ii) as regards payment of the selling price, for the departmentally extracted bamboo industrial cuts, the terms and conditions, as applicable for bamboo extracted by the paper mills (respondent-company), were applicable to the bamboo industrial cuts delivered to the paper mills from the departmentally worked coupes. II. II. RELEVANT PROVISIONS OF THE APGST ACT: Section 2(h) of the APGST Act, 1957 defined 'Goods' to mean all kinds of movable property other than actionable claims, stocks, shares and securities, and included all materials, articles and commodities including the goods (as goods or in some other form) involved in the execution of a works contract; and all growing crops, grass and things attached to or forming part of the land which were agreed to be severed before sale or under the contract of sale. Section 2(n) defined 'Sale', with all its grammatical variations and cognate expressions, to mean every transfer of the property in goods whether as such goods or in any other form in pursuance of a contract or otherwise by one person to another in the course of trade or business for cash, or for deferred payment, or for any other valuable consideration, but did not include a mortgage, hypothecation or pledge of, or a charge on, goods. Explanation II(a) thereto stipulated that, notwithstanding anything contained in the Indian Sale of Goods Act, 1930, a sale or purchase of goods shall be deemed for the purpose of this Act to have taken place in the State, wherever the contract of sale or purchase might have been made, if the goods were within the State (i) in the case of specific or ascertained goods, at the time the contract of sale or purchase was made; and (ii) in the case of unascertained or future goods, at the time of their appropriation to the contract of sale or purchase by the seller or by the purchaser, whether the assent of the other party was prior or subsequent to such appropriation. Section 5(1) of the Act related to levy of tax on sales or purchases of goods and thereunder, save as otherwise provided in the Act, every dealer was required to pay a tax under the Act for each year on every rupee of his turnover of sales or purchases of goods in each year irrespective of the quantum of his turnover at the rate of tax and at the point of levy specified in the Schedules. Section 6-A related to levy of tax on the turnover relating to purchase of certain goods, and thereunder every dealer who, in the course of business, (i) purchased any goods (the sale or purchase of which was liable to tax under the Act) from a registered dealer in circumstances in which no tax was payable under Section 5; or (ii) purchased any goods (the sale or purchase of which was liable to tax under the Act) from a person other than a registered dealer and (a) consumed such goods in the manufacture of other goods for sale or consumed them otherwise, or (b) disposed of such goods in any manner other than by way of sale in the State, or (c) despatched them to a place outside the State except as a direct result of sale or purchase in the course of inter-state trade or commerce, was required to pay tax on the turnover relating to the purchase at the same rate at which, but for the existence of the aforementioned circumstances, the tax would have been leviable on such goods under Section 5 of the Act. III. ARE THE BAMBOOS DELIVERED TO THE RESPONDENT-COMPANY, FROM THE DEPARTMENTALLY EXTRACTED COUPES, EXIGIBLE TO TAX UNDER THE APGST ACT? The question which would arise for consideration is whether the subject transactions concern 'goods' or 'moveable property' or 'immovable property'. By reason of Entry 54 in List II of the Seventh Schedule to the Constitution of India, a State cannot levy a tax on the sale or purchase of any property other than 'goods'. (Titaghur Paper Mills Co. Ltd. (1985) 60 STC 213 )). The definition given in Section 3 of the Transfer of Property Act is, strictly speaking, not a definition of the term 'immovable property' for it merely states what it does not include. The expression "attached to the earth" is defined in Section 3 of the Transfer of Property Act to mean (a) rooted in the earth, as in the case of trees and shrubs; (b) imbedded in the earth, as in the case of walls or buildings; or (c) attached to what is so imbedded for the permanent beneficial enjoyment of that to which it is attached. Section 3 (26) of the General Clauses Act defines 'immovable property' to include land, benefits to arise out of land, and things attached to the earth, or permanently fastened to anything attached to the earth. Things attached to the earth are immovable property. (Titaghur Paper Mills Co. Ltd.1; Smt. Shantabai v. Stale of Bombay ( AIR 1958 SC 532 ). Bamboos rooted in the earth, being things attached to the earth, are immovable property. However bamboos rooted in the earth, which are agreed to be severed before sale or under the contract of sale, are not only moveable property but are also goods. (Titaghur Paper Mills Co. Ltd.1). The words agreed to be severed before sale or under the contract of sale, in the definition of goods under Section 2(h) of the APGST Act, mean that there is an agreement between buyer and the seller; under the agreement, bamboos are agreed to be severed; and such severance may be either before sale or under the contract of sale. Under Section 4 of the Sale of Goods Act, 1930, where there is a transfer from the buyer to the seller, of property in the goods which are the subject-matter of the agreement to sell, the contract of sale is a sale, but when the transfer of property in the goods is to take place at a future time, or subject to some condition thereafter to be fulfilled, it is an agreement to sell which becomes a sale when the time elapses or such conditions are fulfilled. In the former the contract is executed, while in the later it is executory. The distinction between an agreement of sale and a sale of goods is based upon the question whether the "property in the goods" has passed from one person to another. (Andhra Pradesh Paper Mills Ltd.2). It is possible for a sale to come about in one of two ways: either by a contract which itself operates to transfer the goods from the ownership of the seller to that of the buyer, the property passing when the contract is made; or by a contract which is initially only an agreement to sell, but is later performed or executed by the transfer of the property. In either case, the Sale involves not only a contract, but also a conveyance of the property in the goods. In either case, the Sale involves not only a contract, but also a conveyance of the property in the goods. The test is the transfer of the property in the goods from the seller to the buyer. (Titaghur Paper Mills Co. Ltd.1). In order to determine whether, for the provisions to apply, bamboos are to be severed before sale, or under the contract of sale, what is required to be ascertained is the point of time when the property in the goods is transferred from the seller to the buyer. Under Section 18 of the Sale of Goods Act, where there is a contract for the sale of unascertained goods, no property in the goods is transferred to the buyer unless and until the goods are ascertained. Under Section 19, where there is a contract for the sale of specific or ascertained goods, the property in them is transferred to the buyer at such time as the parties to the contract intend it to be transferred; and, for the purpose of ascertaining the intention of the parties, regard is to be had to the terms of the contract, the conduct of the parties, and the circumstances of the case. Further, unless a different intention appears, the rules contained in Sections 20 to 24 are the rules for ascertaining the intention of the parties as to the time at which the property in the goods is to pass to the buyer. (Titaghur Paper Mills Co. Ltd.1). Even if "bamboos", which are not severed, are presumed to be "goods" under Section 2(h) of the Act, other tests must still be satisfied. If, on the date of the contract, these goods were to be treated as "unascertained goods", no property in them would get transferred unless and until the goods were ascertained (Section 18 of the Sale of Goods Act). If the "goods" were to be treated as specific or ascertained goods, on the date of the agreement, the passing of the property depended on the intention of the parties to be gathered as stipulated in Sections 20 to 24 of the Sale of Goods Act. Under Section 20, in the case of specific goods, there must be an unconditional contract in respect of such goods in a "deliverable" state, whether the time of payment of the price or the time of delivery of the goods or both, are postponed. Under Section 20, in the case of specific goods, there must be an unconditional contract in respect of such goods in a "deliverable" state, whether the time of payment of the price or the time of delivery of the goods or both, are postponed. Again under Section 21, if the goods are to be treated as "specific goods" and, if the seller is bound to do something to the goods for the purpose of putting them in a deliverable state, the property does not pass until such thing is done and the buyer has notice thereof. Section 22 also deals with "specific goods" in a deliverable state and, where the seller is bound to weigh, measure, test or to do some other act or thing with reference to the goods for the purpose of ascertaining the price, the property does not pass until such act or thing is done and the buyer has notice thereof. Treating the goods as "unascertained" on the contract date, the further requirement is that they must be in a deliverable state, and the property passes only when the goods are unconditionally appropriated to the contract by the seller with the assent of the buyer or by the buyer with the assent of the seller, such assent being express or implied or given before or after appropriation. (Andhra Pradesh Paper Mills Ltd. (1989) 73 STC 26 )). As Section 2(n) of the APGST Act defines sale to mean transfer of property in goods what is made exigible to tax is not an executory contract of sale, but an executed contract of sale or, in other words, not an executory contract of purchase, but a completed contract of purchase. Such purchase would be complete when the bamboos are specific goods, that is, when they are identified and agreed upon at the time the contract of sale is made, the contract is unconditional, and such bamboos are in a deliverable state, that is, nothing remains to be done except for the buyer to enter upon the land, and to fell and remove the bamboos, without any let or hindrance. If these factors exist then, unless a different intention appears, the property in such bamboos would pass from seller to the buyer when the contract is made. If these factors exist then, unless a different intention appears, the property in such bamboos would pass from seller to the buyer when the contract is made. If, however, there is an unconditional contract for the sale of bamboos which are unascertained, then, unless a different intention appears, the property in them would be transferred to the buyer when the bamboos are ascertained. As, under the provisions, there has to be a completed purchase of bamboos agreed to be severed for the provisions to apply, the severance cannot be before the sale as in that case the property would only pass and the sale completed after severance. Therefore, for the provisions to apply, the severance of the bamboos cannot take place before the sale, but under the contract of sale, that is after the sale thereof is completed. The tax that is levied under the Act is on the completed purchase of goods. (Titaghur Paper Mills Co. Ltd.1; Andhra Pradesh Paper Mills Ltd.2). Whether the tax is levied under Section 6-A of the Act or under Section 5(1) read with the Schedules, there must be a purchase or sale, as the case may be, to attract the tax. Unless there is a sale, the State cannot levy tax under Section 5(1) read with the Schedules to the Act. (Bhadrachalam Paper Boards Limited v. Government of Andhra Pradesh ( 1989 (75) STC 262 )). The subject-matter of the aforesaid provisions of the APGST Act is goods, and the tax that is levied thereunder is only on a completed sale or purchase of goods. The taxable event is not the agreement to sever bamboos, but the purchase of bamboos agreed to be severed. Under these provisions, the severance of bamboos must be under the contract of sale, and not before the sale of such bamboos. (Titaghur Paper Mills Co. Ltd.1). Whatever nomenclature is applied unless there is a "sale of goods there cannot be a sale liable to tax under the Act. A "sale" can only be said to have taken place if the buyer is in a position to remove the goods without "any let or hindrance". (Titaghur Paper Mills Co. Ltd.1). Whatever nomenclature is applied unless there is a "sale of goods there cannot be a sale liable to tax under the Act. A "sale" can only be said to have taken place if the buyer is in a position to remove the goods without "any let or hindrance". The agreement entitled the respondent-company to fell, collect, store and remove all the stocks of bamboos growing, or likely to grow, on the lands in the leased areas, and those bamboo specially reserved for felling and removal in accordance with the silvicultural requirements and prescriptions of the working plan (Clause V (1). Silviculture is the practice of controlling the establishment, growth, composition, health and quality of forests. It focuses on ensuring that the treatment of forest stands are used to preserve and better their productivity. Silviculture brings within its ambit management of forests, as it involves regenerating, tending and harvesting tactics. The respondent-company was required to carry out silviculture operations, wherever they carried on extraction operations, for improvement of the bamboo forests. Fire protection measures were required to be taken wherever needed. The silviculture operations were required to be completed by the respondent in the year of working itself or in 2(two) years spells (Clause V(16)). The respondent-company was required to work in the leased areas in accordance with the prescriptions of the working plans. They were required to work only in one coupe in the year in each of the felling series prescribed in the working plan and allotted under the agreement (Clause V(7)). While several of the terms and conditions of the agreement are common, both to the bomboo industrial cuts delivered from the departmentally worked coupes and the bomboo extracted, from the allotted coupes, by the respondent-company themselves, additional terms and conditions, with regards the supply of departmentally extracted bamboos, were specified in the annexure to the agreement (Clause V(5)(b). These conditions related mainly to the mode of delivery, the sale price and the mode of payment. Where bamboos were extracted and supplied by the department, the respondent-company was required to pay, besides the sale price (which was the same in both), extraction and other charges, as incurred by the department, upto the point of delivery. Delivery of the material, allotted from the departmentally extracted coupes, was to be taken by the respondent-company at the forest depots decided by the concerned Divisional Forest Officer. Delivery of the material, allotted from the departmentally extracted coupes, was to be taken by the respondent-company at the forest depots decided by the concerned Divisional Forest Officer. The bamboos so supplied were required to be used only for the purpose of manufacturing paper and other allied products by the respondent-company (condition No.1). Belated removal or transportation, of the delivered departmentally extracted bamboos, attracted penalties (condition NO.3(ii)(b)). In addition, 7% of the sale price was payable by the respondent-company to compensate the Government for loss of moisture in the bamboos (condition No.6). In view of Condition 7(ii) of the Annexure to the Agreement, the aforesaid terms and conditions, as applicable for the bamboo extracted by the respondent-company, were applicable to the bamboo industrial cuts delivered to the respondent-company from the departmentally worked coupes regarding payment of the selling price for the departmentally extracted bamboo industrial cuts. Extraction and supervision charges were also payable by the respondent-company. While, in the departmentally extracted coupes, bamboos were felled and removed by the forest officials, in the other parts of the allotted coupes, these activities were undertaken by the respondent-company themselves. Except for the additional conditions, which were applicable specifically to departmentally extracted bamboos, all the other terms and conditions of the agreement were common, including those which required the respondent-company to maintain the coupes allotted to them in the forest areas in accordance with the prescriptions of the working plan in force, and to carry out Silviculture operations. While sixty thousand tonnes of bamboo was "allocated" each year, these bamboos were not in a ready and deliverable state when the contract was entered into. The "bamboos" were not removable even after they were cut unless they were weighed and permits were granted. Severance of bamboo, even in the departmentally extracted coupes, was not under the contract of sale, but was prior thereto. The bamboos, liable to be cut each year, were not in a "deliverable state" on the date of the agreement. The various clauses in the contract show that there is no "sale", on the contract date, of bamboos as the goods were not in a deliverable state. As the bamboo cannot be cut or removed except as provided therein, the contract is not an agreement to sell bamboos standing in the contract areas, with an accessory licence to enter upon such areas for the purpose of felling and removing the bamboos. As the bamboo cannot be cut or removed except as provided therein, the contract is not an agreement to sell bamboos standing in the contract areas, with an accessory licence to enter upon such areas for the purpose of felling and removing the bamboos. Nor is it only in respect of a particular felling season. It embraces not only bamboos which are in existence on the date of the contract, but also bamboos which are to grow and come into existence thereafter. There is, therefore, no "sale" within the purview of Section 2(n) the APGST Act. (Andhra Pradesh Paper Mills Ltd.2). IV. IS THE SUBJECT CONTRACT A GRANT OF A PROFIT A PRENDRE? A profit a prendre is a right to take something off another person's land. It is a right to enter another's land and to take some profit of the soil, or a portion of the soil itself, for the use of the owner of the right. The term "profit a prendre" is used in contra-distinction to the term "profit a rendre" which signified a benefit which has to be rendered by the possessor of the land after it had come into his possession. A profit a prendre is a servitude, and an interest in land, and for this reason any disposition of it must be in writing. A profit a prendre, which gives a right to participate in a portion only of some specified produce of the land, is just as much an interest in the land as a right to take the whole of that produce. (Titaghur Paper Mills Co. Ltd.1; Halsbury's Laws of England, Fourth Edition, Volume 14, paragraphs 240 to 242 at pages 115 to 117). A profit a prendre is a servitude for it burdens the land, or rather a person's ownership of land, by separating, from the rest, certain portions or fragments of the right of ownership to be enjoyed by persons other than the Owner. 'Servitude' is a wider term and includes both easements and profits a prendre (Titaghur Paper Mills Co. Ltd.1; Halsbury's Laws of England, Fourth Edition, paragraph 43 at pages 21 to 22). 'Servitude' is a wider term and includes both easements and profits a prendre (Titaghur Paper Mills Co. Ltd.1; Halsbury's Laws of England, Fourth Edition, paragraph 43 at pages 21 to 22). An easement is defined by Section 4 of the Indian Easement Act, 1882 as being "a right which the owner or occupier of certain land possesses, as such for the beneficial enjoyment of that land, to do and continue to do something, or to prevent and continue to prevent something being done in, or upon, or in respect of, certain other land not his own". The distinction between a profit a prendre and an easement is that while an easement only confers a right to utilise the servient tenement in a particular manner, or to prevent the commission of some act on that tenement, a profit a prendre confers a right to take from the servient tenement some part of the soil of that tenement or minerals under it or some part of its natural produce existing upon it. What is taken must be capable of ownership, for otherwise the right amounts to a mere easement. (Titaghur Paper Mills Co. Ltd.1; Halsburys Laws of England, Fourth Edition, paragraph 43 of pages 21 and 22). A profit a prendre is a benefit arising out of land, an interest in the land, and, in view of Section 3(26) of the General Clauses Act, it is immovable property within the meaning of the Transfer of Property Act. (Titaghur Paper Mills Co. Ltd.1; Anand Behera v. State of Orissa ( AIR 1956 SC 17 )). The terms and conditions show that the subject contract is not, and cannot be, a contract of sale of goods. It confers upon the respondent Company a benefit to arise out of land, namely, the right over the bamboos which grow from the soil coupled with several ancillary rights and is thus a grant of a profit a prendre. It is equally not possible to view it as a composite contract one – an agreement relating to standing bamboos agreed to be severed and the other - an agreement relating to bamboos to come into existence in the future. The terms of the Contract make it clear that it is one, integral and indivisible contract which is not capable of being severed. The terms of the Contract make it clear that it is one, integral and indivisible contract which is not capable of being severed. The terms and conditions of the contract confers upon the respondent-company a benefit to arise out of land, and it would thus be an interest in immovable property. It is a grant by the government of an interest in land. The grant of such right, not being for the beneficial enjoyment of any land of the respondent-company, would not be an easement. As the respondent-company was entitled, under the agreement, to take away the bamboos grown even in the departmentally extracted coupes, the agreement, in its entirety (including the part relating to the departmentally extracted bamboos), is a grant of a profit a prendre and is not a sale or purchase of goods exigible to tax under the APGST Act. Being a profit a prendre, or a benefit to arise out of land, any attempt on the part of the State government to tax the amounts, payable under the subject Contract, would not only be ultra vires the APGST Act but also unconstitutional as being beyond the State's taxing power under Entry 54 in List II of the Seventh Schedule to the Constitution of India. (Titaghur Paper Mills Co.Ltd.1). V. CONCLUSION: Sri M. Govind Reddy, Learned Special Standing Counsel for Commercial Taxes, would submit that as the definition of goods, under Section 2(h) of the APGST Act, was amended, subsequent to the judgment of the Supreme Court in Titagarh Paper Mills Co. Ltd1 no reliance can be placed thereupon; and the judgment of the Division Bench of this Court, in Andhra Pradesh Paper Mills Ltd2, needs reconsideration. The construction placed by the Supreme Court in Titagarh Paper Mills Ltd1, on similar provisions under the Orissa Sales Tax Act, is applicable to the present case as the relevant parts of the definition of goods continued to remain a part thereof even after its amendment. The declaration of law by the Division Bench, in Andhra Pradesh Paper Mills Ltd2, was only after an elaborate and exhaustive consideration of all the terms and conditions of the agreement, the provisions of the APGST Act and the Sale of Goods Act. We see no reason, therefore, to take a different view. All the TRCs fail and are, accordingly, dismissed. The miscellaneous petitions pending, if any, shall also stand automatically dismissed. We see no reason, therefore, to take a different view. All the TRCs fail and are, accordingly, dismissed. The miscellaneous petitions pending, if any, shall also stand automatically dismissed. However, in the circumstances, without costs.