9911796707
TMI Blog1982 (9) TMI 216X X X X Extracts X X X X X X X X Extracts X X X X ..... st the petitioner, and praying that the amount stated therein be recovered as if it were a fine imposed by him in accordance with section 13(3)(b) of the Act. The two cases cover two different periods of assessment. That is all the distinction between the two. An objection was raised before the Magistrate, by way of an application in both the cases, that the amount could not be recovered as the petitioner runs a restaurant and renders service by supplying food and eatables to the customers, but does not do transactions amounting to sale which are taxable under the provisions of the Act. The learned Magistrate overruled the objection raised by the petitioner and rejected the application, by relying on section 32 of the Act, which reads a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iled before the Supreme Court, the position of law has been clarified in paragraphs 12, 16 and 17, as follows: "12. It appears from the submission now made that the respondent as well as other States are apprehensive that the benefit of the judgment of this Court will be invoked by restaurant-owners in those cases also where there is a sale of food and title passes to the customers. It seems to us that having regard to the facts upon which our judgment rests-undisputed as they have remained throughout the different stages of the litigation-and the considerations which they attract, no such apprehension can be reasonably entertained. Indeed, we have no hesitation in saying that where food is supplied in an eating-house or restaurant, and i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t repair the verdict once given. So the law laid down must rest in peace. 17.. The learned Solicitor-General took us through English and American legal literature of vintage value and alien milieu. They enlightened us but did not apply fully, as explained by my learned brother. Had they been earlier cited, (sic) had been seriously considered. But India is India. It lives in its one lakh villages, thousands of towns, millions of pavement pedlars and way side victuallers, corner coffee shops and tea-stalls, eating-houses and restaurants and some top-notch parlours. Habits vary, conventions differ and one rigid rule cannot apply in diverse situations. If you go to a coffee-house, order two dosas, eat one and carry the other home, you buy the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sale of food supplied is intended. Therefore, this grievance of Sri Rayareddy cannot be considered by the Magistrate as it is to be considered by the taxing authority. The remedy for the petitioner was by taking up the assessment order in appeal or in revision or by whatever remedy available under the Act. In case he had obtained a stay order, the Magistrate could not have proceeded to levy the tax as if it were a fine imposed by him. No such thing has happened in these matters. I am clearly of the opinion that it is beyond the powers of the Magistrate to go into this aspect, in view of what has been laid down by the Supreme Court. Sri Rayareddy argued that the portion excerpted above and relied upon, is only an observation of the Supr ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
