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TMI Blog2023 (7) TMI 629X X X X Extracts X X X X X X X X Extracts X X X X ..... Commercial Tax Revision No.23 of 2013, dated 22.04.2022. The Coordinate Bench has held in Paragraph Nos.14 to 16 of the said judgment as follows:- "14. Looking from another angle, the term 'sale price' has been defined under Sub-Section 42 of Section 2 of the Uttarakhand VAT Act, 2005. It reads as follows:- (42) "Sale Price" means the amount of valuable consideration received or receivable by a dealer for sale of any goods and shall include any sum charged for anything done by the dealer in respect of goods at the time or before the delivery thereof, excise duty, special excise duty or any other duty or tax but shall not include- (a) any sum allowed by the seller of goods to the purchaser as cash discount, commission or trade discount according to normal trade practice, at the time of sale of goods; (b) the cost of outward freight or delivery or the cost of installation in cases where such cost is separately charged; (c) the amount of tax under this Act, if separately charged by the dealer; Explanation.- For the purpose of this sub-section "Sale Price" includes;- (a) in relation to the delivery of goods on hire purchase or any other system of payment by installments, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the sale price, but such sums which are allowed by the seller of the goods to the purchaser, or outward freight or delivery etc. are excluded, including tax under the Act. Thus, we are of the opinion that in view of the Hon'ble Supreme Court in M/s Anand Swarup Mahesh Kumar (supra), the sale price shall not include the Mandi Shulk that is collected by the Nigam and deposited with the funds of the Committee. We are further of the opinion that the view taken by the learned Single Judge in M/s Ashok Kumar v. State of Uttarakhand and others; Civil Misc. Writ Petition No. 681 of 2009 decided on 01.09.2010 is not a correct view." 6. Consequently, the said revision preferred by the assessee was allowed by this Court. 7. Prima facie, it appears to us that the said decision rendered by this Court requires reconsideration. We say this because the definition of the expression 'sale price', contained in Section 2 (42) clearly states that the sale price means the amount of valuable consideration received or receivable by a dealer for sale of any goods, which shall also include elements of excise duty, special excise duty, 'or any other duty or tax'. 8. The Mandi shulk collected by the de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gent may realize the market fee from the purchaser and shall be liable to pay the same to the Committee; (2) if the produce is purchased directly by a trader from a producer the trader shall be liable to pay the market fee to the Committee; (3) if the produce is purchased by a trader from another trader, the trader selling the produce may realize it from the purchaser and shall be liable to pay the market fee to the Committee; and (4) in any other case of sale of such produce, the purchaser shall be liable to pay the market fee to the Committee". 4. The Supreme Court upheld the submission of the appellant-assessee that when a dealer (who in that case was a Commission Agent) is permitted, by law, to collect the market fees from the purchasers, which he is liable to pay to the Market Committee, such market fees cannot form part of the consideration for sale, and therefore, cannot be included in the turnover of purchases for the purpose of levy of tax under the U.P. Sales Tax Act, 1948. 5. In M/s Anand Swarup Mahesh Kumar (supra) the appellant placed reliance on the judgment of the Supreme Court in Joint Commercial Officer Division II. Madras-2 etc. v. Spencer & Co. etc. etc., ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as part of the turnover for purposes of levy of sales tax. The contention of the appellant that market fees payable under the Adhiniyam cannot be included in the turnover of purchases has, therefore, to be upheld". 7. Learned counsel for the revisionist, therefore, submits that the Supreme Court having already ruled on the nature of levy under Section 17(iii)(b) of the Adhiniyam, and having come to the conclusion that the same cannot be included in the turnover of the dealer, the Division Bench rightly held that the Mandi Shulk did not form part of the 'sale price', as defined in Section 2(42) of the Uttarakhand Value Added Tax Act, 2005. 8. On the other hand, the submission of Mr. J.P. Joshi, learned Additional Advocate General, is that the Supreme Court, while deciding the case of M/s Anand Swarup Mahesh Kumar (supra), was concerned with the provisions of the U.P. Sales Tax Act, 1948. Section 2(gg) thereof, defined the expression 'purchase price' differently and narrowly, when compared to the definition of 'sale price', contained in Section 2(42) of the Uttarakhand VAT Act. He submits that, therefore, the Division Bench erred in proceeding to decide the CTR No.23 of 2013, witho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uable consideration or hire charges received or receivable for such transfer of right to use goods but does not include any sum payable as a penalty or as compensation or damages for breach of agreement; (c) in relation to the transfer of property in goods (whether as goods or in some other form) involved in the execution of works contract, the valuable consideration paid or payable to a person for the execution of such works contract, less the actual amount representing labour and such other charges as may be prescribed, but does not include any sum payable as a penalty or as compensation or damages for breach of agreement; (d) the amount of duties paid or payable under Central Excise Act, 1944, or Customs Act, 1962, or U.P. Excise Act, 1910, as applicable in Uttarakhand, in respect of such goods at the time of clearance of the goods from bonded warehouse, whether such duties are paid or payable by or on behalf of the seller or by any other person; (e) the price of packing material in which goods sold are packed;" 11. Learned Additional Advocate General further submits that a learned Single Judge of this Court had interpreted Section 2(42) of the Uttarakhand VAT Act in M/s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unt of the fee has no relation to the value of the services, the fee will amount to a tax. 17- Therefore, it is quite clear that a fee may be termed as a tax, where the fee is to provide general revenue of the authority rather than to compensate it, and the amount of fee has no relation to the value of the services, the fee will amount to tax. The respondents in their counter affidavit has specifically stated that the Mandi Shulk is charged in the sale memo/bill forms which is an integral part of the Sale Price and the same should be included in the sale price for calculation and charging of tax under the Value Added Tax. It does mean that Mandi Shulk is to provide general revenue of the authority. Therefore, the submission of learned counsel for the petitioner in this regard is not tenable. 18- So far as the observations made by the Hon'ble Apex Court in the case of M/s Anand Swarup Mahesh Kumar v. The Commissioner of Sales Tax, reported in AIR 1981 Supreme Court 440, (supra) is concerned, as stated earlier, the question before me is to the effect that whether the definition of "Sale Price" given under Section 2(42) of Uttarakhand (The Uttaranchal Value Added Tax Act, 2005) Am ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s not statutorily entitled to pass on to the purchaser (though he may pass it on to the purchaser), and concluded that the levy of tax which can statutorily be passed on to the purchaser, cannot form part of the 'purchase price', within the definition of that expression found in Section 2(gg) of the U.P. Sales Tax Act. However, that is not the issue before us. The real issue is whether, the Mandi Shulk, which the dealer is entitled to statutorily recover from the purchaser, falls within the definition of expression 'sale price' contained in Section 2(42) of the Uttarakhand VAT Act, or not. 16. As noticed above, the expression 'sale price' defined in Section 2(42) of the Uttarakhand VAT Act is a very widely defined expression, which means the amount of valuable consideration received or receivable by a dealer for sale of any goods, and shall include any sum charged for anything done by the dealer in respect of goods at the time or before the deliver thereof, excise duty, special excise duty or 'any other duty or tax'. The expression 'any other duty or tax', in our view, is clearly broad enough to include the Mandi Shulk, which is nothing but a duty which the dealer is statutorily e ..... X X X X Extracts X X X X X X X X Extracts X X X X
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