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TMI Blog1989 (12) TMI 306X X X X Extracts X X X X X X X X Extracts X X X X ..... bject to the condition that the respondent, in each of the appeals, deposits a sum of ₹ 5,000 towards the assessed tax and furnishes security in respect of the balance of the tax to the satisfaction of the said first appellate authority within two months from today. - Civil Appeal No. 5092, & 5093 of 1989, - - - Dated:- 11-12-1989 - VENKATACHALIAH M.N. AND AHMADI A.M. JJ. S.P. Goel, Senior Advocate (C.K. Bansal and S.K. Kapoor, Advocates, with him), for the respondents. Mahabir Singh, Advocate for the appellants. -------------------------------------------------- ORDER Special leave is granted. These appeals are by the Revenue and are directed against the order dated 20th of May, 1983, of the Division ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sit the tax due as a condition for the appeals being heard on the merits. Respondents appear to have assailed the order declining to exempt them from payment of the tax in further appeals, but without any success. 3.. Respondents thereafter approached the High Court under article 226 of the Constitution. From the order of the learned single judge, which has come to be affirmed by the Division Bench, it would appear that the appellants did not confine their challenge to the legality of the order of the appellate authorities declining relief under the proviso to sub-section (5) of section 39, but the respondents raised and the High Court permitted a challenge to the merits of the assessment itself on the ground that the transactions assesse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cidental, the transaction would undoubtedly be exigible to sales tax. In every case it will be for the taxing authority to ascertain the facts when making an assessment under the relevant sales tax law and to determine upon those facts whether a sale of the food supplied is intended." In the course of the proceedings of assessment the assessing authority said: "After going through the above judgment of the Supreme Court of India, it becomes clear that where food is supplied in an eating-house or a restaurant and the substance of the transaction has a dominant object of sale and the rendering of services is merely incidental, the transactions would be subject to sales tax. The deciding factor in the case of this dealer, therefore, is whe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the dealer is definitely one of sale of foodstuffs and not of rendering services. I have examined some of the bills of the dealer and find that he has charged the price of foodstuffs only and there is no other consideration for any type of services. The dominant object in his case is, therefore, undoubtedly the sale of foodstuffs and not of providing any music, entertainment or services. I think the Supreme Court had in mind those establishments where the entrance is on some payment, where shows are held and the supply of foodstuffs is just nominal and incidental to the entertainment. A visitor to such entertainment or amusement house spends a few hours for the purpose of entertainment on payment. Naturally, the establishment providing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t case, the stage at and the points on which the challenge to the assessment in judicial review was raised and entertained was not appropriate. In our opinion, the High Court was in error in constituting itself into a court of appeal against the assessment. While it was open to the respondents to have raised and for the High Court to have considered whether the denial of relief under the proviso to section 39(5) was proper or not, it was not open to the High Court to reappreciate the primary or perceptive facts which were otherwise within the domain of the fact-finding authority under the statute. The question whether the transactions were or were not sales exigible to sales tax constituted an exercise in recording secondary or inferential ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase, we think that the order of the High Court cannot be allowed to remain undisturbed. We allow these appeals, set aside the judgments of the Division Bench in the Letters Patent Appeals as also the orders of the learned single judge in the writ petitions in the High Court. 6.. Learned counsel for the respondents, however, said that though the legality of the refusal of the benefit of an order under the proviso to section 39(5) had been raised before the High Court, that question receded to the background in view of the relief having been allowed on the main question touching the nature of the transactions. Learned counsel said that the former question yet remains to be examined. Learned counsel also submitted that the refusal of the a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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