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TMI Blog2000 (11) TMI 1065X X X X Extracts X X X X X X X X Extracts X X X X ..... Vineet Kumar, Advocates, with him), for the appellants. -------------------------------------------------- The judgment of the Court was delivered by B.N. KIRPAL, J.- This appeal by way of special leave arises from assessment order in respect of the year 1982-83 passed by the Sales Tax Officer, Delhi, subjecting to tax, sales made by the appellants in the restaurants owned by them which are situated in the appellants' hotels. 2.. In the appeal which was filed, the two grounds which were taken were firstly challenge to the Forty-sixth Amendment to the Constitution whereby definition of expression "sale of goods" was amended and the second ground taken was that on a correct interpretation of the Delhi Sales Tax Act, 1975, the sales made in the restaurants could not be taxed. 3.. Mr. Gopal Subramanium, learned Senior Counsel for the appellants, has not argued or urged the first contention with relation to the challenge to the Forty-sixth Amendment. His contention is that on a correct interpretation of the provisions of the Delhi Sales Tax Act, 1975 and section 2(1) in particular, there is no sale in a restaurant in a hotel and, therefore, no sales tax could be l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ition of sales tax on the transfer of the materials or goods in the execution thereof, we find that on a correct interpretation of the 1975 Act the ratio of the decision of this Court in Northern India Caterers' case [1980] 45 STC 212; (1980) 2 SCC 167 would not be applicable. 7.. Section 2(e) defines "dealer", section 2(g) "goods" and section 2(l) "sale". The said provisions are as follows: "2(e) 'dealer' means any person who carries on business of selling goods in Delhi and includes- (i) the Central Government or a State Government carrying on such business; (ii) an incorporated society (including a co-operative society), club or association which sells or supplies goods, whether or not in the course of business, to its members for cash or for deferred payment or for commission, remuneration or other valuable consideration; (iii) a manager, factor, broker, commission agent, del credere agent, or any mercantile agent, by whatever name called, and whether of the same description as hereinbefore mentioned or not, who sells goods belonging to any principal whether disclosed or not; and (iv) an auctioneer who sells or auctions goods belonging to any principal, whether disc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he case of taxable turnover in respect of any other goods, at the rate of eight paise in the rupee: Provided that the Lieutenant Governor may, by notification in the official gazette, add to, or omit from, or otherwise amend, the First Schedule, the Second Schedule or the Fourth Schedule, either retrospectively or prospectively, and thereupon the First Schedule or the Second Schedule or, as the case may be, the Fourth Schedule shall be deemed to be amended accordingly: Provided further that no such amendment shall be made retrospectively if it would have the effect of prejudicially affecting the interests of any dealer: Provided also that in respect of any goods or class of goods if the Lieutenant Governor is of opinion that it is expedient in the interest of the general public so to do, he may, and by notification in the official gazette, direct that the tax in respect of taxable turnover of such goods or class of goods shall, subject to such conditions as may be specified, be levied at such modified rate not exceeding the rate applicable under this section, as may be specified in the notification. (2) For the purposes of this Act, 'taxable turnover' means that part ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pect of any sale referred to in sub- clause (iv) shall be allowed unless the goods, in respect of which deduction is claimed, are proved to have been sold by the dealer within a period of twelve months from the date of his registration and the claim for such deduction is included in the return required to be furnished by the dealer in respect of the said sale: Provided further that no deduction in respect of any sale referred to in sub-clause (v) shall be allowed unless a true declaration duly filled and signed by the registered dealer to whom the goods are sold and containing the prescribed particulars in the prescribed form obtainable from the pre- scribed authority is furnished in the prescribed manner and within the prescribed time, by the dealer who sells the goods: Provided also that where any goods are purchased by a registered dealer for any of the purposes mentioned in sub-clause (v), but are not so utilised by him, the price of the goods so purchased shall be allowed to be deducted from the turnover of the selling dealer but shall be included in the taxable turnover of the purchasing dealer; and (b) the tax collected by the dealer under this Act as such and show ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in State of Himachal Pradesh v. Associated Hotels of India Ltd. [1972] 29 STC 474; (1972) 1 SCC 472 where at page 478 of SCC (482 of STC) it was observed as follows: "No doubt, the customer, during his stay, consumes a number of food-stuffs. It may be possible to say that the property in those food-stuffs passes from the hotelier to the customer at least to the extent of the food-stuffs consumed by him. Even if that be so, mere transfer of property, as aforesaid, is not conclusive and does not render the event of such supply and consumption a sale, since there is no intention to sell and purchase." 11.. In Associated Hotels' case [1972] 29 STC 474; (1972) 1 SCC 472, this Court was dealing with a situation where the hotel was receiving guests and providing them with all the amenities along with food and the bill which was tendered to the guests was all inclusive. In other words, whether the customer staying at the hotel consumed the food supplied to it or not, made no difference and the composite price or amount had to be paid by him. The court made it clear that it was not dealing with a case where food was being supplied by a restaurant to a customer against payment of various ..... X X X X Extracts X X X X X X X X Extracts X X X X
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