2014 (5) TMI 97 - HC - VAT and Sales Tax

Whether supply of cooked food in the restaurant are covered under Uttarakhand VAT Act, 2005 Held that - VAT can be imposed on sale of goods and not on service - Service can be taxed by Service Tax Laws - The authority competent to impose service tax has also assumed competence to declare what is service - The State has not challenged the same - Therefore, where element of service has been so declared and brought under Service Tax vide Government of India notification dated 06.06.2012 (i.e. 40% of bill amount to customers having food or beverage in the restaurant was made liable to service tax) no VAT can be imposed thereon - Commissioner erred in rejecting the application of the revisionist - Thus, the revision is allowed - Judgments of Tribunal as well as of the Commissioner, Commercial Tax are set aside Matter remitted back to Commissioner for afresh order Decided in favour of Assessee.

Summary

Issues:
1. Applicability of Value Added Tax on services provided by a partnership firm engaged in the hotel business.
2. Interpretation of the amendment to the Service Tax (Determination of Value) Rules, 2006 regarding the liability of service tax on the supply of food or beverages in a restaurant.
3. Validity of the rejection of the application under Section 57 of the VAT Act, 2005 by the Commissioner, Commercial Tax and subsequent dismissal of appeal by the Commercial Tax Tribunal.

Analysis:

1. The High Court examined whether Value Added Tax (VAT) could be imposed on services provided by a partnership firm operating in the hotel industry. It was established that VAT is applicable to the sale of goods and not on services, which are subject to taxation under Service Tax Laws. The Court emphasized that the authority responsible for imposing service tax has the jurisdiction to determine what constitutes a service. As the State did not contest the declaration of services liable to service tax under the Government of India notification dated 06.06.2012, which included 40% of the billed amount for food or beverages in a restaurant, the Court concluded that VAT cannot be levied on such services.

2. Regarding the interpretation of the amendment to the Service Tax (Determination of Value) Rules, 2006, the Court clarified that the element of service deemed liable to service tax, as specified in the notification, precludes the imposition of VAT on the same services. The Court highlighted that the declaration made by the competent authority regarding the liability of service tax on certain services supersedes the imposition of VAT on those services.

3. The Court found fault with the decision of the Commissioner, Commercial Tax in rejecting the revisionist's application under Section 57 of the VAT Act, 2005. Consequently, the Court allowed the revision, overturning the judgments of both the Tribunal and the Commissioner, Commercial Tax. The Commissioner, Commercial Tax was instructed to reconsider the matter in accordance with the Court's observations, indicating that the application should not have been dismissed based on the erroneous interpretation of tax liabilities on the services provided by the partnership firm in the hotel business.