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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 ..... d 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. 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 , is clearly broad enough to include the Mandi Shulk, which is nothing but a duty which the dealer is statutorily entitled to recover from the purchaser. Merely because it is statutorily recoverable by the dealer from the purchaser, it does not cease to be any other duty within the meaning of sale price defined in Section 2(42) of the Uttarakhand VAT Act. Thus, Mandi Shulk levied under Section 17(iii)(b) of the Adhiniyam would f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al 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, the total amount of valuable consideration including deposit or other initial payment in order to complete the purchase or the acquisition of the property in goods. It includes hire charges, interest and other charges incidental to such transaction, but does not include any sum payable as penalty or as compensation or damages for breach of agreement; (b) in relation to transfer of the right to use any goods for any purpose (whether or not for a specified period) the valuable 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat 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 dealer is passed on by the dealer as a part of its sale price to the purchaser. In fact, a perusal of Paragraph No.15, and the earlier part of Paragraph No.16, as quoted hereinabove, shows that the Division Bench also took notice of the aforesaid provision. However, the Division Bench went on to hold that the sale price shall not include Mandi Shulk that is collected by the Nigam and deposited with the funds of the Committee, for which we find no justification. 9. Accordingly, we refer the judgment of the Division Bench in Commercial Tax Revision No.23 of 2013, dated 22.04.2022, for fresh consideration to a larger Bench." 2. Learned counsel for the revisionist has placed the judgment of the Division Bench judgment of this Court in Commercial Tax Re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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., (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 Tax Act, 1959, because the seller was statutorily entitled to recover the sales tax payable by him from the purchaser. 6. After examining Section 21-A of the Madras Prohibition Act, 1937, and taking note of the observations made by the Supreme Court in Spencer & Co. (supra), the Supreme Court held in Paragraph No.15 of its judgment in M/s Anand Swarup Mahesh Kumar (supra), as follows:- "15. We do not find any substantial difference between Section 21-A of the Madras Prohibition Act 1937 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eneral, 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, without examining and appreciating the aforesaid difference in the language used in Section 2(gg) of the U.P. Sales Tax Act, 1948, which defines the expression 'purchase price', and the language used in Section 2(42) of the Uttarakhand VAT Act, 2005, which defines the expression 'sale price'. 9. Section 2(gg) of the U.P. Sales Tax Act, which has also been extracted in the judgment of the Supreme Court in M/s Anand Swarup Mahesh Kumar (supra), reads as follows:- "2 (gg) purchase price means the amount of valuable consideration paid or payable by a person for the purchase of any goods, less any sum allowed by the seller as case discount according to trade practice and shall include any sum charged for anything done by the seller ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ustoms 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 Ashok Kumar v. State of Uttarakhand & others, Civil Misc. Writ Petition No.681 of 2009, decided on 01.09.2010, and held that the Mandi Shulk realized by the Commission Agent or Arhatiya in the transaction of sale or purchase of agricultural produce, formed part of 'sale price' under Section 2(42) of the Uttarakhand VAT Act. The learned Single Judge dealt with the submission of the assessee premised upon M/s Anand Swarup Mahesh Kumar (supra). The submission of the learned Brief Holder appearing for the State, was taken note of in Paragraph No.11 by the learned Single Judge, which reads as follows:- "Learned Brief Holder appearing on behalf of the State has urged that Uttaranchal Value Added Tax Act, 2005 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efore, 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) Amendment Act, 2008, includes the market fee (Mandi Shulk) or not, therefore, the observations of Hon'ble Apex Court cannot be taken into account to solve the controversy before this Court. 19- It will not be out of place to mention here that the petitioner has not challenged the validity of the definition of 'Sale Price' given under Section 2 of Subsection 42 of the Act, rather he has sought the relief for the quashment of impugned circular, in which the respondent No.1 has made interpretation to this effect that Mandi Shulk is included in the 'Sale Price'. 20- Therefore, in view of discussion made above, and in the peculiar facts and circumstances of the case, I find that the petitioner is not entitle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly 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 entitled to recover from the purchaser. Merely because it is statutorily recoverable by the dealer from the purchaser, it does not cease to be 'any other duty' within the meaning of 'sale price' defined in Section 2(42) of the Uttarakhand VAT Act. 17. That being the position, in our considered view, Mandi Shulk levied under Section 17(iii)(b) of the Adhiniyam would fall within the definition of the expression 'sale price', as defined in Section 2(42) of the Uttarakhand VAT Act, and would be treated as a part of sale price of the goods. 18. We are, therefore, of the view that the decision of the Division Bench in CTR No.23 of 2013 is not the correct view. The Division Bench has not examined the aforesaid ..... X X X X Extracts X X X X X X X X Extracts X X X X
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