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TMI Blog1973 (7) TMI 104X X X X Extracts X X X X X X X X Extracts X X X X ..... ,20,382.61 at 2 1/2 per cent 1960-61 ... Rs. 5,65,770.30 at 2 per cent 1961-62 ... Rs. 6,08,412.48 at 2 per cent 1962-63 ... Rs. 2,52,548.00 at 2 per cent 1963-64 ... Rs. 1,08,957.82 at 2 per cent In calculating the 50 per cent of the receipts under apartment and board as representing sales of articles of food and drinks, the assessees had deducted a sum of Rs. 1,43,840 for the year 1958-59, Rs. 1,67,624 for the year 1960-61, Rs. 2,22,061 for 1961-62, Rs. 76,934 for 1962-63 and Rs. 15,390.50 for 1963-64 from the total receipts of apartment and board as relating to charges for air-conditioning and telephone facilities provided in the rooms. From the assessment year 1949-50 onwards 50 per cent of the apartment and boarding charges was taken as the taxable turnover representing sale of food and drinks and the assessees were assessed accordingly up to 1957-58. The assessees while adopting 50 per cent of the receipts from apartment and boarding charges as the taxable turnover, sought to deduct the above-said amounts as representing the charges for air-conditioning and telephones installed sometime in 1956-57. The assessees claimed relief in respect of this item on the ground that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iness as hoteliers, as part of its business, received guests in its several hotels and charged an all inclusive rate for each day. The bill given to the guests did not contain different items in respect of each of the amenities. The question for consideration was whether the company was liable to pay sales tax under the Punjab General Sales Tax Act, 1948, in respect of the meals served in the hotel to the guests coming there for stay. Confirming the decision of the Punjab High Court in State of Punjab v. Associated Hotels of India Ltd.[1967] 20 S.T.C. 1., the Supreme Court held that the transaction was essentially one and Indivisible and that it was one of service by the hotelier in the performance of which and as part of the amenities incidental to the service, the hotelier served meals at stated hours. It was not open to the revenue to split up the transaction into two parts one of service and the other of sale of food-stuffs-and to split up also the bill charged by the hoteliers as consisting of charges for lodging and charges for food-stuffs served to him. There was no sale of food-stuffs and, therefore, the assesseecompany was not liable to pay sales tax in respect of meals se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e authority, it was not possible for the Tribunal to go into the taxability or otherwise of the said turnover. Confirming this decision, this court held: "Section 36 (Tamil Nadu General Sales Tax Act, 1959) opens with the words 'any person objecting to an order passed by the Appellate Assistant Commissioner'. If a particular turnover was not brought before the Appellate Assistant Commissioner by way of an appeal by the assessee, he cannot be said to have been aggrieved by the Appellate Assistant Commissioner not considering that item in his order. Therefore, the test for finding out the powers of the Tribunal is to correlate the subject-matter of the appeal before the Tribunal to that of the Appellate Assistant Commissioner." Support for this view was also invoked from the decisions in Easun Engineering Co. Ltd. v. Joint Commercial Tax Officer[1970] 26 S.T.C. 486., Central Camera Co. (P.) Ltd. v. Government of Madras[1971] 27 S.T.C. 112. and Panchura Estates Ltd. v. Government of MadrasT.C. Nos. 86 and 87 of 1967., apart from other decisions. In the present case also, the assessees did not dispute the taxability of 50 per cent of the receipts under apartment and board as represen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... udication of rights as between the assessee and the State, then it creates, as it were, an estoppel, which is far superior to the estoppel that is ordinarily created in a civil dispute. An assessee in a taxing statute is fully aware, or, at any rate, is conscious of the burden which is likely to be imposed on him by reason of the pending proceedings and if, in such a context, he gives up a quantum of the turnover for reasons known to him, then he cannot take advantage of the supervening judicial precedents which might favour him and urge that the still higher hierachy should hear him on the question whether the turnover voluntarily given up by him also can at all be brought into the net of taxation. One cannot approbate and reprobate is a well-established principle. Here is a case where an assessee was not prompted by any one excepting himself to give up a portion of the disputed turnover before the appellate authority. In those circumstances we are unable to agree with the contention of the learned counsel for the assessee that section 36 of the Madras General Sales Tax Act, 1959, could be of any assistance to him." The present case is an a fortiori case. In the decision in Centr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the turnover relating to food and drinks was not properly before the Appellate Assistant Commissioner and, therefore, he could not have considered or decided that issue. A similar question came up for consideration before this court in Easun Engineering Co. Ltd. v. Joint Commercial Tax Officer[1970] 26 S.T.C. 486., to which one of us was a party. In that case the assessee who did not raise any ground in respect of a particular turnover before the appellate authority raised that point and argued the same claiming relief at the time of hearing of the appeal. But the Appellate Assistant Commissioner did not consider that question and the order was silent regarding the same. The assessee filed an appeal to the Tribunal. In that appeal also the assessee did not raise the particular point which he argued before the Appellate Assistant Commissioner, but restricted the appeal grounds to the subject-matter which was agitated before the appellate authority. Some time later, relying on the decision of this court in Larsen and Toubro Ltd. v. Joint Commercial Tax Officer[1967] 20 S.T.C. 150., the assessee sought to raise additional grounds and filed a petition before the Tribunal for rece ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re, therefore, unable to accept the argument of the learned counsel for the assessees that, at least in respect of the assessment years 1958-59 and 1963-64, the Tribunal was within its jurisdiction in giving relief to the assessees in respect of the turnover relating to food and drinks. The Supreme Court in State of H.P. v. Associated Hotels of India Ltd.[1972] 29 S.T.C. 474 (S.C.)., above referred to, had held that the entire receipts under apartment and board are not liable to sales tax. The assessees in the present case deducted specified amounts from the total receipts as representing charges for air-conditioning and telephones and showed 50 per cent of the remaining as the taxable turnover. The assessees had been agitating for this position before the assessing as well as the first appellate authorities. Therefore, the turnover which was not in dispute before the assessing and the appellate authorities was only that 50 per cent of the remainder after deducting the charges for air-conditioning and telephones. Since the Tribunal was allowing the entire turnover as exempt from tax, no distinction has been made relating to the charges for air-conditioning and telephones and the a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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