9911796707
TMI Blog1980 (2) TMI 249X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee then took up the matter in revision before the Additional Judge (Revisions), Sales Tax, Varanasi. The making of the best judgment assessment was not challenged before him. For the first time, however, it was contended that the assessee being a restaurant was not liable to pay any tax on his turnover since he provided many services in addition to supply of food and reliance was placed on a recent decision of the Supreme Court rendered in the case of Northern India Caterers (India) Ltd. v. Lt. Governor of Delhi [1978] 42 STC 386 (SC); AIR 1978 SC 1591; 1979 UPTC 826 (SC). The revising authority accepted this contention and held that there was no evidence of any counter sales and the assessee was not liable to pay any tax on the out-t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 26 (SC) was applicable to this case, it was necessary to investigate into certain facts and apart from that there was no service of meals at all by the assessee and it was the case of outright sales made by him. Further, if as a result of the aforesaid decision there arose any mistake on the legal aspect of the case, the remedy of the assessee was to make an application under section 22 of the Act for rectification thereof. After hearing the counsel for the parties I am not inclined to accept this submission. On facts it may be noted that there was no question of any further investigation because a finding was recorded by the additional revising authority that there was no evidence of counter sales. This finding has not been challenged in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Mal Dau Dayal v. Commissioner of Sales Tax [1972] 30 STC 384; 1972 UPTC 262, in which it was laid down that the assessee having admitted the liability to pay the tax and having deposited the same on the admitted turnover before the appellate authority, was barred from raising the plea that the commodity in question was exempt from tax in the relevant assessment year in revision application before the Judge (Revisions), Sales Tax. In my opinion this decision is distinguishable inasmuch as the assessee is claiming total exemption from tax and it is not in respect of any commodity that he has claimed such exemption. Further he is claiming exemption on the ground that he was not making any sales at all but whatever he was preparing he was serv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the substance of the transaction evidenced by its dominant object, is a sale of food and the rendering of services is merely incidental, 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 view of this pronouncement, it would be necessary to refer back the case to the revising authority to determine whether the rendering of services by the assessee is the dominant object or is merely incidental to the sale of food which in substance is the dominant object and if that is so the out-turn in respect of the sale of cooke ..... X X X X Extracts X X X X X X X X Extracts X X X X
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