Allahabad High Court
The Commissioner Commercial Tax vs M/S Suruchi Foods Pvt. Ltd. on 26 April, 2022
Bench: Piyush Agrawal
HIGH COURT OF JUDICATURE AT ALLAHABAD
Court No. - 1
Case :- SALES/TRADE TAX REVISION No. - 19 of 2017
Revisionist :- The Commissioner Commercial Tax
Opposite Party :- M/S Suruchi Foods Pvt. Ltd.
Counsel for Revisionist :- S.C.
Counsel for Opposite Party :- Naveen Chandra Gupta
With
Case :- SALES/TRADE TAX REVISION No. - 20 of 2017
Revisionist :- The Commissioner Commercial Tax
Opposite Party :- M/S Suruchi Foods Pvt. Ltd.
Counsel for Revisionist :- S.C.
Counsel for Opposite Party :- Naveen Chandra Gupta
With
Case :- SALES/TRADE TAX REVISION No. - 21 of 2017
Revisionist :- The Commissioner Commercial Tax
Opposite Party :- M/S Suruchi Foods Pvt. Ltd.
Counsel for Revisionist :- S.C.
Counsel for Opposite Party :- Naveen Chandra Gupta
With
Case :- SALES/TRADE TAX REVISION No. - 22 of 2017
Revisionist :- The Commissioner Commercial Tax
Opposite Party :- M/S Suruchi Foods Pvt. Ltd.
Counsel for Revisionist :- S.C.
Counsel for Opposite Party :- Naveen Chandra Gupta
With
Case :- SALES/TRADE TAX REVISION No. - 23 of 2017
Revisionist :- The Commissioner Commercial Tax
Opposite Party :- M/S Suruchi Foods Pvt. Ltd.
Counsel for Revisionist :- S.C.
Counsel for Opposite Party :- Naveen Chandra Gupta
Hon'ble Piyush Agrawal,J.
1. Heard Shri Rishi Kumar, learned Additional Chief Standing Counsel for the revisionist and Shri Naveen Chandra Gupta, learned counsel for the opposite party.
2. These revisions have been filed against the judgements & orders dated 29.05.2015 passed by the Commercial Tax Tribunal (Bench-II), Noida in Second Appeal Nos. 272 of 2013 (A.Y. 2005-06), 573 of 2013 (A.Y. 2006-07), 574 of 2013 (A.Y. 2007-08), 575 of 2013 (A.Y. 2007-08) and 577 of 2013 (A.Y. 2009-10), in which following common question of law has been framed:-
"(I) Whether under the facts and in the circumstances of the case the Commercial Tax Tribunal was legally justified in holding that freight charges which was realized in the bills separately shall not form part of the turnover ignoring the decision of the Apex Court in the case of S/s India Meters Ltd. Vs. State of Tamilnadu reported in 2010 NTN (44) 143?"
3. Learned Additional Chief Standing Counsel submits that the respondent, while making the sale, had charged freight and therefore, liable to be included in the taxable turnover. In support of this submission, he has relied upon the judgement of the Hon'ble Apex Court in S/s India Meters Limited Vs. State of Tamilnadu reported in 2010 NTN (44) 143. He prays for allowing of the revision.
4. Per contra, learned counsel for the opposite party supports the impugned order passed by the Tribunal and submits that the issue in hand has already been decided by this Court in Sales/Trade Tax Revision No. 493 of 2011 (Vikalp Construction Company Vs. CCT) vide judgement & order dated 23.08.2012; wherein, this Court was of the opinion that the freight shall not form part of the turnover. He, therefore, prays for dismissal of the revision.
5. After hearing learned counsel for the parties, the Court has perused the record.
6. This Court in Vikalp Construction Company (supra) has held as under:-
"He has also argued that in so far as the transportation charges are concerned, they form part B of the contract and rates which are fixed for transportation cannot be included or become part of the sale price of the goods.
Learned counsel for the assessee has relied on the definition of word "turnover"as defined in U.P.Trade Tax Act and has relied on Explanation II (i) which reads as under:
"(i) The amount for which goods are sold or purchased shall include the price of the packing material in which they are packed and any sums charged for anything done by the dealer in respect of the goods sold, at the time of or before the delivery thereof, other than goods sold, at the time of or before the delivery thereof, other than cost of freight or delivery or cost of installation or the amount realized as trade tax on sale or purchase of goods when such cost or amount is separately charged."
The provision as quoted above, clearly contemplates exclusion of the cost of freight or delivery or cost of installation or amount realized as trade tax on sale or purchase of goods when such goods or amount is separately charged.
Learned counsel for the revisionist has relied on decision of this court, which was delivered in identical circumstances wherein the dealer was also engaged in the supply of the material to the railways along with a contract for supply also. The case relied on is M/s. Aruna Trading Company versus C.S.T. reported in 1983 UPTC 82 wherein this Court came to the conclusion that since the price of goods ballast and cost of other charges had been separately agreed to between the parties then the cost of transportation could not have been made part of the turnover of the assessee and the assessee would only be liable to be charged on the price of the goods supplied.
So far as the reliance made in the impugned order by the tribunal on the judgment of Hon'ble Apex Court in the case of India Meters Limited versus State of Tamilnadu reported in 2010 U.P.T.C. 1309, is concerned, learned counsel for the revisionist has argued that the case for consideration before the Hon'ble Apex Court was with regard to Tamilnadu General Sales Tax Rules, 1959 and not of U.P. Trade Tax Act where there is clear and specific provision has been enacted/inserted in Explanation II (i) with regard to the word "turnover"."
7. Further, the Tribunal, while allowing the appeal of the revisionist, has relied upon the judgement rendered in the case of S/s India Meters Limited (supra), which is applicable to the State of Tamilnadu and not in the case of State of Uttar Pradesh. This court concerned in this matter with the provisions of U.P. Act, which shall fall for consideration before the Tribunal also.
8. In view of the aforesaid facts & circumstances as well as the judgement rendered by this Court in Vikalp Construction Company (supra), no question of law arises as the matter is concluded by finding of fact.
9. All the revisions are, accordingly, dismissed.
Order Date :-26/04/2022
Amit Mishra
