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TMI Blog2022 (4) TMI 1545X X X X Extracts X X X X X X X X Extracts X X X X ..... eading to filing of this Commercial Tax Revision, are that the revisionist-assessee represents the State owned Corporation, which is engaged in the business of trading forest produce viz. timber, firewood, jadi booti etc. The revisionist-assessee was assessed to tax under Section 25(6) of the Act vide assessment order dated 26.04.2011, and the account books kept by the assessee were accepted. However, the amount charged as Mandi Shulk and development cess on the sale of forest produce from buyers was not declared as a part of the taxable turnover by the revisionist-assessee. The Assessing Authority, vide assessment order dated 26.04.2011, held that the amount realized towards mandi shulk and development cess from the buyers will be included as a part of the taxable turnover as per the provisions laid down under Sub-Section (42) of Section 2 of the Act. 3. Aggrieved by such an order, the revisionist-assessee filed a First Appeal before the learned Joint Commissioner (Appeals) being Appeal No. 417 of 2011. The learned Joint Commissioner (Appeals), vide order dated 17.02.2012, confirmed the findings recorded by the assessing authority on this issue. Such order of the learned Joint Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4 SCC 451, which considered the same provision, the Mandi Shulk cannot be included in the sale price of a merchandise dealt with by the Nigam. Hence, the learned Senior Counsel prays that the orders impugned be set-aside. 6. Ms. Puja Banga, the learned Brief Holder for the State of Uttarakhand, on the other hand, would argue that this issue has already been decided by a learned Single Bench of this Court in the case of M/s. Ashok Kumar v. State of Uttarakhand and others; Civil Misc. Writ Petition No. 681 of 2009 decided on 01.09.2010, and there is no need to change the view of this Court. 7. In order to adjudge whether Mandi Shulk should be included in the sale price of the goods sold by the Nigam in the Mandi, we have to take into consideration Section 17(iii)(b) provided in the Adhiniyam, which has been amended by U.P. Act. No. 7 of 1978 with retrospective effect from June, 12, 1973. The said provision reads as follows:- 17. A Committee shall, for the purposes of this Act, have the power to:- (iii) levy and collect: (b) market fee, which shall be payable on transactions of sale of specified agricultural produce in the market area at such rates, being not less than one pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de in those decisions referred to above, it follows that where a dealer is authorized by a law to pass on any tax payable by him on the transaction of sale to the purchaser, such tax does not form part of the consideration for purposes of levy of tax on sales, or purchases but where there is no statutory provision authorizing the dealer to pass on the tax to the purchaser, such tax does form part of the consideration when he includes it in the price and realizes the same from the purchaser. The Hon'ble Supreme Court further noted that the essential factor which distinguishes the former class of cases from the latter class is the existence of a statutory provision authorizing a dealer to recover the tax payable on the transaction of sale from the purchaser. 10. The Hon'ble Supreme Court further took note of the earlier judgment of it in Joint Commercial Officer Division II. Madras-2 etc. v. Spencer & Co. etc. etc.; (1975) 2 SCC 358, wherein it was held that the sales tax which a seller of foreign liquor was liable to pay under Section 21-A of the Madras Prohibition Act, 1937 did not form part of the turnover on which sales tax could be levied under the Madras General Sales ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 17(iii)(b) of the Adhiniyam, and, therefore, the contention of the learned Senior Counsel for the revisionist-assessee appears to be more tenable than the contention raised by the learned Brief Holder for the State. 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 de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at are paid prior to the delivery, or at the time of delivery, are included in 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. 17. In that view of the matter, this Commercial Tax Revision is allowed. The orders passed by the Assessing Authority dated 26.04.2011, the First Appellate Authority dated 17.02.2012, and the learned Tribunal dated 05.07.2013 are, hereby, set-aside. The revisionist-assessee is liable to pay value added tax on the sale price, excluding the Mandi Shulk. 18. There shall be no orders as to cost. 19. In sequel thereto, all pending applications also stand disposed of. 20. Urgent ce ..... X X X X Extracts X X X X X X X X Extracts X X X X
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