Ajay Kumar Mittal, J. - (1.) THIS order shall dispose of VAT Appeal Nos. 68 and 69 of 2013 as according to the learned counsel for the parties, the issues involved therein are identical. For brevity, the facts are being taken from VAT Appeal No. 68 of 2013. This appeal has been preferred by the appellant under section 36 of the Haryana Value Added Tax Act, 2003 (in short, "the Act") against the order dated November 9, 2012 passed by the Haryana Tax Tribunal, Chandigarh (hereinafter referred to as "the Tribunal") in STA No. 605 of 2010 -11, claiming the following substantial questions of law: "(i) Whether, in the facts and circumstances of the present case, the learned Tribunal was justified in including incidental charges such as dami, dalali and mandi in the gross turnover? (ii) Whether, in the facts and circumstances of present case, interest is leviable from the date of assessment order in question or from the date of assessment order by which the Assessing Authority has taxed the incidental charges for the first time for any assessment year? (iii) Whether in the facts and circumstances of the case, the learned Tribunal was justified in adjudicating the issue of interest when the same has already been adjudicated and that too contrary to its earlier decision? (iv) Whether the learned Tribunal was justified in upholding interest from the date of order by any Assessing Authority who has assessed the tax on incidental charges for the first time for any assessment year in view of the judgment of this honorable court in the case of the appellant itself, i.e., Food Corporation of India v. State of Haryana (CWP No. 4739 of 1989?
(2.) THE facts leading to the filing of the instant appeal may be noticed. The appellant -corporation is engaged in the procurement of wheat, foodgrains, paddy and rice for the central pool either independently or in association with the State Governments and their agencies. The Assessing Officer vide order dated November 28, 1986 while framing the assessment for the year 1978 -79 raised an additional demand of Rs. 1,65,62,436 on account of incidental charges like dami, dalali and mandi charges. Feeling aggrieved, the assessee filed an appeal before the Joint Excise and Taxation Commissioner (Appeals) (in short, "the JETC (A)") who vide order dated June 20, 1989 reduced the additional demand to Rs. 72,98,139. The assessee filed CWP No. 6855 of 1986 before this court. In pursuance of the order passed by this court, the assessee furnished a bank guarantee amounting to Rs. 79,73,847 which was encased by the Revenue vide letter dated April 3, 2002. The said writ petition was dismissed as withdrawn with liberty to file an appeal before the Tribunal. Thereafter, the assessee filed an appeal before the Tribunal. The Tribunal remanded the matter to the assessing authority for framing fresh assessment. The Tribunal also held that the original assessment framed was not barred by limitation. In pursuance of the order of the Tribunal, the assessing authority framed the assessment vide order dated September 10, 2009 (annexure A1) and levied interest amounting to Rs. 20,96,440. Feeling aggrieved, the assessee filed an appeal before the JETC (A). The JETC (A) vide order dated September 15, 2010 (annexure A2) upheld the levy of tax on the incidental charges. However, remanded the matter to the assessing authority to calculate the interest from the date of first assessment for any year passed by any assessing authority. Still dissatisfied, the assessee filed an appeal before the Tribunal who vide order dated December 15, 2011 (annexure A4) disposed of the appeal in view of the judgment of this court in the case of the assessee in CWP No. 4739 of 1989 wherein it was held that the interest was leviable from the date of assessment order till the date of actual payment of the demand raised and not from the date of filing of the return. Thereafter, the assessee filed review application for deciding the issue of tax on incidental charges. The Tribunal vide order dated October 9, 2012 (annexure A7) decided the issue of tax on incidental charges against the assessee in view of the judgment of this court in Food Corporation of India v. State of Punjab : [2010] 30 VST 47 (P & H); [2010] 35 PHT 40 (P & H). Further, the Tribunal held that the interest was leviable from the date of order by which the assessing authority or any other competent authority had taxed the incidental charges for the first time for any year. Hence, the present appeal. It was not disputed by the learned counsel for the parties that question (i) stands concluded by the decision of this court in the case of assessee in Food Corporation of India, Amritsar's case : [2010] 30 VST 47 (P & H) : [2010] 35 PHT 40 (P & H), wherein identical issue has been decided in favour of the State. In the said case, it was held as under (page 54 in 30 VST): "... after the agricultural produce has been purchased by the dealer in inter se bidding then for taking its delivery it has to incur certain expenditure, which are either on or before the delivery. The provision is illustrative with regard to the aggregate of the amounts of purchases and parts of purchases actually made by any dealer. Therefore, it would include the price of bag, labour charges, stitching charges, price of jute thread, dammi and carriage, etc. In that regard, the contention of the learned State counsel deserves to be accepted that there is no delivery taken before weighment, which is not possible without packing the agricultural produce in a gunny bag. We also find substance in the contention of the learned counsel that even stitching and labour incurred for all these activities have to be included for effective delivery of the goods, which would include carriage also. . ."
(3.) IN view of the above, question (i) is answered against the assessee.;