- (1.) Leave granted.
(2.) This appeal by Food Corporation of India (in short "FCI") is directed against the judgment and order of the High Court of Punjab & Haryana at Chandigarh dated 08.02.2007 in G.S.T.R. No. 16 of 1991 by which the High Court disposed of the reference made by the Sales Tax Tribunal. It returned the first question unanswered and answered the second question in favour of the assessee.
(3.) The appellant, a Statutory Corporation, engaged in the purchase and sale of foodgrains, is an assessee registered under the Punjab General Sales Tax Act, 1948 (hereinafter referred to as "the Act") at Amritsar. The appellant filed its quarterly returns in forms ST-XIII and ST-VIII-A showing gross turnovers at Rs.76,26,49,211.19 and Rs.5,88,00,715.78 respectively. Deductions were claimed in respect of sales of tax free goods and sales made to the registered dealers. Dissatisfied with the returns filed, the Assessing Authority issued statutory notice in form ST-XIV under Section 11(2) of the Act requiring the appellant to produce their accounts. In response to the said notice, the appellant appeared before the Assessing Authority and produced the accounts. After examining the accounts, the Assessing Authority, Amritsar, vide its order dated 20.1.1983 rejected the same and issued an additional demand of Rs.1,84,58,291/- including the penalty. Against the order of the Assessing Authority, the appellant filed an appeal before the Deputy Excise and Taxation Commissioner. By order dated 16.11.1983, the Deputy Excise and Taxation Commissioner partly allowed the appeal and remanded the case to the Assessing Authority for a fresh decision after affording reasonable opportunity of being heard to the appellant. Dissatisfied with the said order, the appellant filed an appeal before the Sales Tax Tribunal. The Sales Tax Tribunal vide its order dated 22.11.1984 dismissed the same. The appellant filed a further petition before the Tribunal under Section 22(1) of the Act for referring the questions involved to the High Court for its opinion. On 4.11.1986, the Tribunal rejected the petition of the appellant on the ground that the matter was already under consideration of the High Court and the decision taken on this point would become applicable on all such cases. Feeling aggrieved, the appellant filed a petition under Section 22(2) of the Act before the High Court praying to direct the Tribunal to refer the questions to the High Court for its opinion. Vide its order dated 27.09.1988, the High court directed the Tribunal to send the case and refer the questions for its opinion. In compliance of the said order, the Tribunal by order dated 15.09.1989 referred two questions of law for the opinion of the High Court which are as under: "1) Whether in the facts and circumstances of the case, the expenses incurred by the State or Agencies of the Food Corporation of India after acquiring or purchasing the goods before delivery to the petitioner-dealer could form part of gross turnover and be subjected to tax 2) Whether in the facts and circumstances of the case, could the market fee be included in the purchase turnover in view of (Anand Swarup Mahesh Kumar vs. Commissioner of Sales Tax, 1980 46 STC 477) - The High Court by the impugned order dated 08.02.2007 concluded that the first question did not emerge from the order of the Tribunal there being no factual basis available, returned the question unanswered. In respect of the second question, the High Court concluded that the same was covered by the judgment of this Court in State of Punjab & Ors. vs. Guranditta Mal Shauti Prakash & Ors., 2004 136 STC 12 and accordingly answered the question in favour of the assessee. Aggrieved by the said order, the appellant - FCI preferred this appeal by way of special leave before this Court.;