TMI Blog2014 (8) TMI 139X X X X Extracts X X X X X X X X Extracts X X X X ..... be considered as a levy on the seller. Mandi fee is to be paid by the purchaser under the Rules of 1963 to the Mandi Samiti for the infrastructure created by it for facilitating a transaction i.e. it is a charge independent of the privity of contract between the seller to the purchaser and not a part of the consideration paid to the seller by the buyer. The market fee charged by the Mandi Samiti is not a levy on the seller and thus cannot constitute statutory levy within the meaning of Section 2(36) of the RVAT Act, 2003 liable to be included in the sale price. Further in case of M/s. George Oakes (P.) Ltd. v. State of Madras [1961 (4) TMI 78 - SUPREME COURT OF INDIA] a Constitution bench of the Hon'ble Supreme Court has observed that where ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sistant Commissioner-cum-special Secretary (hereinafter 'the Inspecting Authority') under powers vested in him under Section 26 of the RVAT Act, 2003. Thereupon it was noticed that the respondent-assessee (hereinafter 'the assessee') had not calculated payable VAT under the RVAT Act, 2003 by including the Mandi Fee which was collected by the seller and reflected in the invoices. Show cause notice as to why due tax, interest and penalty on tax short paid should not be charged. Thereafter the matter was transferred to the Commercial Tax Officer, CTO II Jaipur for disposal. The assessing authority vide order dated 31-8-2010 concluded that mandi fee collected by the assessee amounted to a pre-sale expenditure (no matter it was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the judgment in the case of Krishna Electricals v. Tamilnadu State [2010] 26 Tax Update 1 the Tax Board held that even otherwise the transaction having been disclosed in the books of assessee the levy of penalty with reference to Section 61 of the 2003 Act was absolutely unwarranted and illegal. So holding the Tax Board set aside the orders passed by the Assessing Authority as also the concurring order passed in Appeal. Learned counsel for the Revenue Mr. R.B. Mathur submitted that the judgments relied upon by the assessee in the cases reported in Chhabra Rice Mills (supra) as also Guranditta Mal Shrauti Prakash (supra) and followed by the Tax Board pertained to provisions under the Sales Tax Laws then extant in State of Punjab which we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rawal, learned counsel for respondent assessee has supported the impugned order dated 4-7-2012 passed by the Tax Board. Heard learned counsel for the parties and perused the material available on record. Section 2(36) of the 2003 Act reads thus: Sale price- means the amount paid or payable to a dealer as consideration for the sale of any goods less any sum allowed by way of any kind of discount or rebate according to the practice normally prevailing in the trade, but inclusive of any statutory levy or any sum charged for anything done by the dealer in respect of the goods respect of goods or services rendered at the time of or before the delivery thereof, except the tax imposed under the VAT Act. To my mind the wo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder which the market fee is paid to the Market Committee reads as under: Rule 59. Recovery of Cess and Fees: 1. The cess on agricultural produce shall be payable as soon as it is bought and sold in the market area as may be specified in the bye-laws. 2. The market fees shall be paid by the purchaser in the following manner: (i) if the specified agricultural produce is sold through an A Class Broker the A Class Broker shall charge market fees from the purchaser and deposit the same with the market Committee in accordance with the procedure specified in the bye-laws. (ii) if the specified agricultural produce is not sold through an A class Broker, the seller shall charge market fees from the purchaser ..... X X X X Extracts X X X X X X X X Extracts X X X X
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