IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. G.S.T.R. No. 16 of 1991 Date of Decision: October 9, 2009 M/s Food Corporation of India, Amritsar …Petitioner Versus The State of Punjab …Respondent CORAM: HON'BLE MR. JUSTICE M.M. KUMAR HON’BLE MR. JUSTICE JASWANT SINGH Present: Mr. Sandeep Goyal, Advocate, for the petitioner. Ms. Sudeepti Sharma, DAG, Punjab, for the respondent. 1. To be referred to the Reporters or not? 2. Whether the judgment should be reported in the Digest? M.M. KUMAR, J. The Food Corporation of India had filed STC No. 4 of 1987 before this Court for issuance of direction to the Sales Tax Tribunal, Punjab (for brevity, ‘the Tribunal’) to refer to this Court two questions of law claimed to have emerged out of the order of the Tribunal dated 22.11.1984 in respect of assessment year 1975-76. Accordingly, this Court passed order dated 27.9.1988 directing the Tribunal to refer the following two questions of law for determination: G.S.T.R. No. 16 of 1991 “1) Whether in 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 subject 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 46 STC 447?” 2. The matter came up for consideration before a Division Bench of which one of us (M.M. Kumar, J.) was a member. The Bench proceeded to answer second question but did not answer the first question by recording the fact that it did not emerge from the order dated 22.11.1984 passed by the Tribunal. The Bench has also recorded the statement of the counsel for both the parties accepting the aforesaid factual position. Accordingly the first question was returned unanswered. However, the Food Corporation of India challenged order dated 8.2.2007 passed by this Court before Hon’ble the Supreme Court to the extent that the first question was returned unanswered. Hon’ble the Supreme Court in Civil Appeal No. 5712 of 2009, while affirming the view expressed by this Court on the second question, held that the first question should have also been answered by this Court. Accordingly, the view expressed with regard to first question was set aside and the matter has been remitted back for decision afresh on the first question after taking into account the 2 G.S.T.R. No. 16 of 1991 factual basis provided by the Assessing Authority, Appellate Authority and the orders of the Tribunal. 3. Few facts necessary for answering question No. 1 may first be noticed. The Food Corporation of India, which is a registered dealer filed its quarterly returns claiming deductions in respect of tax free goods and sales made to the registered dealers. The Assessing Authority was not satisfied with the returns filed. In pursuance to the statutory notice, the accounts were produced by the Food Corporation of India and after examination the same were rejected. An additional demand was created vide order dated 20.1.1983. Before the Assessing Authority the dispute had arisen as to whether the expenses incurred like service charges, market fees, commission and labour charges, were to form part and parcel of the bill and, therefore, is part of consideration. The answer given by the Assessing Authority was in the affirmative by holding that these expenses include market fee, dammi and labour charges, which form part and parcel of the bill and, hence, are the part of consideration. Likewise, the expenses incurred on bardana were also held as part of the consideration by the Assessing Authority by holding that there was an implied contract for the sale of bardana along with rice. The price of gunny bags at the rate of Rs. 4/- per bag was calculated and assessment was framed at the rate of 6% and accordingly demand was raised. The order of the Assessing Authority was affirmed on appeal filed under Section 20(1) of the Punjab General Sales Tax Act, 1948 (for brevity, ‘the Act’). The issue was raised and the plea of the review was accepted. Accordingly, it was held that the market fee, dammi and other service 3 G.S.T.R. No. 16 of 1991 charges before delivery would form part of consideration. The order the Appellate Authority on further appeal filed by the Food Corporation of India was affirmed by the Tribunal, vide its order dated 22.11.1984. 4. Mr. Sandeep Goyal, learned counsel for the Food Corporation of India has at the outset conceded that the aforesaid question has been raised before this Court in the case of M/s Food Corporation of India, Ferozepur v. State of Punjab (G.S.T.R. No. 14 of 1990, decided on 19.3.2009) and has been answered against the Food Corporation of India by the Division Bench of which one of us (M.M. Kumar, J.) was a member. A perusal of the Division Bench judgment rendered in G.S.T.R. No. 14 of 1990 (supra) would show that this Court has considered the definition of expression ‘turn over’ as defined in Section 2(i) of the Act and it was concluded that any sum charged for anything done by the dealer in respect of the goods at the time of or before delivery thereof would be included in the expression ‘turn over’. In para 12, the Division Bench has reached the following conclusion:- “12. A close scrutiny of the aforesaid provision shows that emphasis has been made to include any sum charged for anything done by the dealer in respect of the goods at the time of or before delivery thereof. It follows that 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 4 G.S.T.R. No. 16 of 1991 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. Therefore, question No. 1 deserves to be answered in favour of the revenue and against the dealer- FCI.” 5. In view of the above, question No. (1) has to be answered against the Food Corporation of India and in favour of the revenue. The reference stands disposed of accordingly. (M.M. KUMAR) JUDGE (JASWANT SINGH) October 9, 2009 JUDGE Pkapoor 5