JUDGMENT : Sri S.K. Mishra, J. In this Commercial Tax Revision, the revisionist-assessee i.e. M/s Prabhagiya Vipran Prabandhak, Uttarakhand Van Vikas Nigam, Tanakpur, has assailed the judgment passed by the Commercial Tax Tribunal, Uttarakhand, Haldwani Bench, Haldwani, in Second Appeal No. 71 of 2012 filed under Section 53 of the Uttarakhand Value Added Tax Act, 2005 (hereinafter referred to as “the Act”, for brevity), dismissing his appeal, wherein he has challenged the assessment of the year 2007-08 under the Act, and inclusion of the ‘Mandi Shulk’ in the sale price of the goods and merchandise dealt with by the Nigam. 2. The facts of the case, leading to filing of this Commercial Tax Revision, are that the revisionistassessee represents the State owned Corporation, which is engaged in the business of trading forest produce viz. timber, firewood, jadi booti etc. The revisionist-assessee was assessed to tax under Section 25(6) of the Act vide assessment order dated 26.04.2011, and the account books kept by the assessee were accepted. However, the amount charged as Mandi Shulk and development cess on the sale of forest produce from buyers was not declared as a part of the taxable turnover by the revisionist-assessee. The Assessing Authority, vide assessment order dated 26.04.2011, held that the amount realized towards mandi shulk and development cess from the buyers will be included as a part of the taxable turnover as per the provisions laid down under Sub-Section (42) of Section 2 of the Act. 3. Aggrieved by such an order, the revisionist-assessee filed a First Appeal before the learned Joint Commissioner (Appeals) being Appeal No. 417 of 2011. The learned Joint Commissioner (Appeals), vide order dated 17.02.2012, confirmed the findings recorded by the assessing authority on this issue. Such order of the learned Joint Commissioner (Appeals) was again challenged before the Commercial Tax Tribunal, Uttarakhand, Haldwani Bench, Haldwani in Second Appeal No. 71 of 2012. The said Second Appeal was dismissed on 21.09.2012. Thereafter, the revisionist-assessee filed Commercial Tax Revision No. 26 of 2012, under Section 55 of the Act, before this Court. This Court, vide judgment and order dated 18.12.2012, remanded back the matter to the Tribunal for deciding the issue involved in the case afresh. Accordingly, the Second Appeal No. 71 of 2012 was restored to its original number, and was again re-heard de novo. This Court, vide judgment and order dated 18.12.2012, remanded back the matter to the Tribunal for deciding the issue involved in the case afresh. Accordingly, the Second Appeal No. 71 of 2012 was restored to its original number, and was again re-heard de novo. The said Second Appeal was dismissed by the learned Tribunal vide judgment and order dated 05.07.2013, which is impugned in this case. 4. The learned Tribunal took into consideration the definition of ‘sale price’ as found under Sub-Section (42) of Section 2 of the Act, and the unreported case of M/s Ashok Kumar v. State of Uttarakhand and others; Civil Misc. Writ Petition No. 681 of 2009 decided on 01.09.2010, and came to the conclusion that the Mandi Shulk will be the part of the ‘sale price’, and, therefore, dismissed the appeal. Such judgment passed on remand has been assailed in this Commercial Tax Revision. 5. Mr. S.K. Posti, the learned Senior Counsel appearing on behalf of the revisionist-assessee relied on the definition of the ‘sale price’ available in the Act, and Section 17(b)(iii) of the Uttar Pradesh Krishi Utpadan Mandi Adhiniyam, 1964, as applicable to the State of Uttaranchal vide Adaptation and Modification Order, 2002, which has been repealed in the meantime by virtue of Section 95 of the Uttarakhand Agricultural Produce Marketing (Development and Regulation) Act, 2011. The learned Senior Counsel further contended that, as per the definition under Section 17(iii)(b) of the Uttar Pradesh Krishi Utpadan Mandi Adhiniyam, 1964 (hereinafter referred to as “the Adhiniyam”, for brevity), the Mandi Shulk is to be collected from the buyers, and in lieu of its collection as an agent on behalf of the Mandi Samiti and ultimate remittance to the Mandi Samiti itself, it does not go to the funds of the Nigam. Hence, no amount collected as such as Mandi Shulk can be taxed. He further contends that, by virtue of the reported judgment of the Hon’ble Supreme Court in the case of M/s Anand Swarup Mahesh Kumar v. Commissioner of Sales Tax; (1980) 4 SCC 451 , which considered the same provision, the Mandi Shulk cannot be included in the sale price of a merchandise dealt with by the Nigam. Hence, the learned Senior Counsel prays that the orders impugned be set-aside. 6. Ms. Hence, the learned Senior Counsel prays that the orders impugned be set-aside. 6. Ms. Puja Banga, the learned Brief Holder for the State of Uttarakhand, on the other hand, would argue that this issue has already been decided by a learned Single Bench of this Court in the case of M/s Ashok Kumar v. State of Uttarakhand and others; Civil Misc. Writ Petition No. 681 of 2009 decided on 01.09.2010, and there is no need to change the view of this Court. 7. In order to adjudge whether Mandi Shulk should be included in the sale price of the goods sold by the Nigam in the Mandi, we have to take into consideration Section 17(iii)(b) provided in the Adhiniyam, which has been amended by U.P. Act. No. 7 of 1978 with retrospective effect from June, 12, 1973. The said provision reads as follows :- 17. A Committee shall, for the purposes of this Act, have the power to:- (iii) levy and collect: (b) market fee, which shall be payable on transactions of sale of specified agricultural produce in the market area at such rates, being not less than one percentum and not more than one and half percentum of the price of the agricultural produce so sold, as the State Government may specify by notification, and such fee shall be realised in the following manner – (1) if the produce is sold through a commission agent, the commission agent may realise the market fee from the purchaser and shall be liable to pay the same to the Committee; (2) if the produce is purchased directly by a trader from a producer the trader shall be liable to pay the market fee to the Committee; (3) if the produce is purchased by a trader from another trader, the trader selling the produce may realise it from the purchaser and shall be liable to pay the market fee to the Committee; and (4) in any other case of sale of such produce, the purchaser shall be liable to pay the market fee to the Committee." 8. Thus, it is clear from the aforesaid provision that if the produce is sold through a commission agent, the commission agent in this case being the Nigam, shall realize the market fee from the purchaser and shall be liable to pay the same to the Committee. Thus, it is clear from the aforesaid provision that if the produce is sold through a commission agent, the commission agent in this case being the Nigam, shall realize the market fee from the purchaser and shall be liable to pay the same to the Committee. In other words, the market fee, or the Mandi Shulk, i.e. realized from the purchaser shall not go to the funds of the Nigam, rather it will be paid to the Mandi Committee. 9. In interpreting this provision, the Hon’ble Supreme Court was considering the question relating to inclusion of the market fee and the commission, otherwise called ‘dami’, payable to the commission agent, operating within a market area established under the Adhiniyam, in the turnover of purchases of the applicant for the purposes of levy of sales tax under Section 3D of the U.P. Sales Tax Act, 1948. After taking into consideration the reported cases of Paprika Ltd. & Anr. v. Board of Trade; [1944] 1 K.B. 327 and Love v. Norman Wright (Builders) Ltd.; [1944] 1 K.B. 484 (C.A.), the Hon’ble Supreme Court has come to the conclusion that Mandi Shulk should not be included in the sale price. In both the judgments referred to hereinabove, it has been laid down that the price payable by a purchaser under a contract of goods for the purpose of certain penal provisions was the price fixed by the contract, and a seller who wished to recover the amount of the purchase tax should, except where an adjustment was authorized by the Statute, include that amount in the price so fixed. From the observations made in those decisions referred to above, it follows that where a dealer is authorized by a law to pass on any tax payable by him on the transaction of sale to the purchaser, such tax does not form part of the consideration for purposes of levy of tax on sales, or purchases but where there is no statutory provision authorizing the dealer to pass on the tax to the purchaser, such tax does form part of the consideration when he includes it in the price and realizes the same from the purchaser. The Hon’ble Supreme Court further noted that the essential factor which distinguishes the former class of cases from the latter class is the existence of a statutory provision authorizing a dealer to recover the tax payable on the transaction of sale from the purchaser. 10. The Hon’ble Supreme Court further took note of the earlier judgment of it in Joint Commercial Officer Division II. Madras-2 etc. v. Spencer & Co. etc. etc.; (1975) 2 SCC 358 , wherein it was held that the sales tax which a seller of foreign liquor was liable to pay under Section 21-A of the Madras Prohibition Act, 1937 did not form part of the turnover on which sales tax could be levied under the Madras General Sales Tax Act, 1959 because the seller was entitled to recover the sales tax payable by him from the purchaser. The Supreme Court further held that there is no substantial difference between Section 21-A of the Madras Prohibition Act, 1937 and Section 17(iii)(b) of the Adhiniyam. It further held that the levy under Section 21-A of the Madras Prohibition Act, 1937 was sales tax payable to the State Government, under Section 17(iii)(b) of the Adhiniyam, the levy in question is market fees payable to the Market Committee, and, secondly, whereas the former provision stated that “every person or institution which sells foreign liquor........ shall collect from the purchaser and pay over to the Government.......”, the latter provision states that “if the produce is sold through a commission agent, the commission agent may realize the market fees from the purchaser and shall be liable to pay the same to the Committee”. 11. The levies in both the cases, the Hon’ble Supreme Court further held, are statutory although under the Madras Prohibition Act, 1937, it is a tax payable to the Government and under the Adhiniyam, it is a fee payable to the Market Committee, which is a statutory body. The only distinguishing feature between the two laws is that whereas the Madras Act provides that every person who sells foreign liquor ‘shall’ collect sales tax from the purchaser, the Adhiniyam provides that the commission agent ‘may’ realize the market fees from the purchaser. The only distinguishing feature between the two laws is that whereas the Madras Act provides that every person who sells foreign liquor ‘shall’ collect sales tax from the purchaser, the Adhiniyam provides that the commission agent ‘may’ realize the market fees from the purchaser. The use of word ‘shall’ in the former case and ‘may’ in the latter case is not of much consequence in so far as the question involved in the reported case is concerned because in both the cases the seller or the commission agent, who is liable to pay the tax or the fee, as the case may be, is entitled to statutorily realize it from the purchaser, and wherever a dealer is authorized by law to do so, the tax or fee realized by him from the purchaser cannot be treated as a part of the turnover for the purpose of levy of sales tax. 12. The Hon’ble Supreme Court, therefore, held that the contention of the appellant, in the reported case, that market fees payable under the Adhiniyam cannot be included in the turnover of purchases, has, therefore, to be upheld. 13. The same provision is applicable to this case, as in this case, the market fee or the Mandi Shulk is levied under Section 17(iii)(b) of the Adhiniyam, and, therefore, the contention of the learned Senior Counsel for the revisionist-assessee appears to be more tenable than the contention raised by the learned Brief Holder for the State. 14. Looking from another angle, the term ‘sale price’ has been defined under Sub-Section 42 of Section 2 of the Uttarakhand VAT Act, 2005. 14. Looking from another angle, the term ‘sale price’ has been defined under Sub-Section 42 of Section 2 of the Uttarakhand VAT Act, 2005. It reads as follows:- (42) "Sale Price" means the amount of valuable consideration received or receivable by a dealer for sale of any goods and shall include any sum charged for anything done by the dealer in respect of goods at the time or before the delivery thereof, excise duty, special excise duty or any other duty or tax but shall not include- (a) any sum allowed by the seller of goods to the purchaser as cash discount, commission or trade discount according to normal trade practice, at the time of sale of goods; (b) the cost of outward freight or delivery or the cost of installation in cases where such cost is separately charged; (c) the amount of tax under this Act, if separately charged by the dealer; Explanation.- For the purpose of this sub-section "Sale Price" includes;- (a) in relation to the delivery of goods on hire purchase or any other system of payment by installments, the total amount of valuable consideration including deposit or other initial payment in order to complete the purchase or the acquisition of the property in goods. It includes hire charges, interest and other charges incidental to such transaction, but does not include any sum payable as penalty or as compensation or damages for breach of agreement; (b) in relation to transfer of the right to use any goods for any purpose (whether or not for a specified period) the valuable consideration or hire charges received or receivable for such transfer of right to use goods but does not include any sum payable as a penalty or as compensation or damages for breach of agreement; (c) in relation to the transfer of property in goods (whether as goods or in some other form) involved in the execution of works contract, the valuable consideration paid or payable to a person for the execution of such works contract, less the actual amount representing labour and such other charges as may be prescribed, but does not include any sum payable as a penalty or as compensation or damages for breach of agreement; (d) the amount of duties paid or payable under Central Excise Act, 1944, or Customs Act, 1962, or U.P. Excise Act, 1910, as applicable in Uttarakhand, in respect of such goods at the time of clearance of the goods from bonded warehouse, whether such duties are paid or payable by or on behalf of the seller or by any other person; (e) the price of packing material in which goods sold are packed; 15. Thus, it is clear though specifically there is no mention that market fees will be excluded from the sale price, it is apparent that the following sums are included in the sale price: (i) the sum charged for anything done by the dealer in respect of goods at the time or before the delivery thereof; (ii) excise duty; (iii) special excise duty or any other duty or tax but shall not include: (a) any sum allowed by the seller of goods to the purchaser as cash discount, commission or trade discount according to normal trade practice, at the time of sale of goods; (b) the cost of outward freight or delivery or the cost of installation in cases where such cost is separately charged; and (c) the amount of tax under the Act, if separately charged by the dealer. 16. 16. Thus, it is clear that any sums that are paid prior to the delivery, or at the time of delivery, are included in the sale price, but such sums which are allowed by the seller of the goods to the purchaser, or outward freight or delivery etc. are excluded, including tax under the Act. Thus, we are of the opinion that in view of the Hon’ble Supreme Court in M/s Anand Swarup Mahesh Kumar (supra), the sale price shall not include the Mandi Shulk that is collected by the Nigam and deposited with the funds of the Committee. We are further of the opinion that the view taken by the learned Single Judge in M/s Ashok Kumar v. State of Uttarakhand and others; Civil Misc. Writ Petition No. 681 of 2009 decided on 01.09.2010 is not a correct view. 17. In that view of the matter, this Commercial Tax Revision is allowed. The orders passed by the Assessing Authority dated 26.04.2011, the First Appellate Authority dated 17.02.2012, and the learned Tribunal dated 05.07.2013 are, hereby, set-aside. The revisionist-assessee is liable to pay value added tax on the sale price, excluding the Mandi Shulk. 18. There shall be no orders as to cost. 19. In sequel thereto, all pending applications also stand disposed of. 20. Urgent certified copy of this order be issued to the parties, as per Rules.