Alok Sharma, J. - (1.) SINCE all these revision petitions arise out of the order dated 4 -7 -2012 passed by the Rajasthan Tax Board, Ajmer and relate to the same legal issue, they are being decided by a common order. Facts of revision petition No. 228/2012 are being adverted to. This sales tax revision petition has been filed under Section 84 of the Rajasthan Value Added Tax Act, 2003 (hereinafter 'the RVAT Act, 2003') against the order dated 4 -7 -2012 passed by the Rajasthan Tax Board Ajmer (hereinafter 'the Tax Board'). Thereunder the inclusion of Mandi Fee payable by the purchaser to the market Committee and not the seller albeit accounted for through him under Rule 59 of the Rajasthan Agricultural Produce Marketing Rules, 1963 (hereinafter 'the 1963 Rules') promulgated under Rajasthan Agricultural Produce Marketing Act, 1962 (hereinafter 'the Act of 1962') within the "sale price" as defined in Section 2(36) of the RVAT Act, 2003 has been held to be illegal and set aside.
(2.) FACTS : The business premises of the respondent assessee was surveyed on 25 -6 -2010 by the Assistant Commissioner -cum -special Secretary (hereinafter 'the Inspecting Authority') under powers vested in him under Section 26 of the RVAT Act, 2003. Thereupon it was noticed that the respondent -assessee (hereinafter 'the assessee') had not calculated payable VAT under the RVAT Act, 2003 by including the "Mandi Fee" which was collected by the seller and reflected in the invoices. Show cause notice as to why due tax, interest and penalty on tax short paid should not be charged. Thereafter the matter was transferred to the Commercial Tax Officer, CTO II Jaipur for disposal. The assessing authority vide order dated 31 -8 -2010 concluded that mandi fee collected by the assessee amounted to a pre -sale expenditure (no matter it was reimbursed by the purchaser) on which value added tax was leviable. Consequently aside of the VAT allegedly short paid interest thereon and penalty under Section 61 of the RVAT Act, 2003 also came to be visited upon the assessee. An appeal under Section 82 of the RVAT Act, 2003 to the Appellate Authority against the order dated 31 -8 -2010 being unsuccessful, the assessee approached the Tax Board Ajmer by way of second appeal under Section 83 of the RVAT Act, 2003. Vide order dated 4 -7 -2012 the Tax Board held that the orders passed by the Assessing authority as also by the Appellate Authority were unsustainable in view of the fact that mandi fee under Rule 59 of the 1963 Rules, was very evidently a liability of the purchaser and not the seller. The Tax Board held that mere reimbursement of mandi fee paid by the seller on behalf of the purchaser of the agricultural product i.e. Ghee, was not liable to have to be included as a part of the seller's consideration for the sale i.e. "sale price" under section 2(36) of the RVAT Act, 2003. The Tax Board relied upon the judgments of the Hon'ble Supreme Court in the cases of State of Punjab v. Chhabra Rice Mills : [2006] 144 STC 1 and State of Punjab v. Guranditta Mal Shrauti Prakash, [2004] 9 Tax Update 103 to buttress its conclusions. It was categorically held that consequently no tax or interest was payable qua the mandi fee paid by the seller on behalf of the purchaser and subsequently reimbursed to it. Further relying upon the judgment in the case of Krishna Electricals v. Tamilnadu State : [2010] 26 Tax Update 1 the Tax Board held that even otherwise the transaction having been disclosed in the books of assessee the levy of penalty with reference to Section 61 of the 2003 Act was absolutely unwarranted and illegal. So holding the Tax Board set aside the orders passed by the Assessing Authority as also the concurring order passed in Appeal.
(3.) LEARNED counsel for the Revenue Mr. R.B. Mathur submitted that the judgments relied upon by the assessee in the cases reported in Chhabra Rice Mills (supra) as also Guranditta Mal Shrauti Prakash (supra) and followed by the Tax Board pertained to provisions under the Sales Tax Laws then extant in State of Punjab which were para materia to the provisions of the RST Act, 1994 and not RVAT, 2003. It was submitted that section 2(36) of RVAT Act, 2003 was differently worded and therefore the judgments relied upon by the assessee were in apposite to the determination of the issue. It was submitted that section 2(36) of the RVAT Act, 2003 provides that any statutory levy in respect of goods transacted would be included within the sale price and exigible to tax. Default in payment of tax due -or short payment of tax inevitably carries interest and penalty. It has been submitted that the Tax Board has not adverted to this statutory definition of the sale price under section 2(36) of the RVAT Act, 2003 and on this count erred in excluding the statutory levy of mandi fee from the "sale price". It was submitted that in this view of the matter conclusions of the assessing authority as also the appellate authority in holding that the mandi fee under the Rules of 1963 collected by the seller for payment of the market fee albeit on behalf of the purchaser constituted part of "sale price" and non -payment of tax thereon was to be visited by recovery of tax short paid, interest and penalty was legal and proper. The submission is that the Tax Board erred in holding to the contrary. It is therefore prayed that the impugned order dated 04 -07 -2012 passed by the Tax Board be set aside and that of the assessing authority passed on 31 -8 -2010 as upheld by the appellate authority on 30 -5 -2011 be restored.;