9911796707
TMI Blog1989 (11) TMI 294X X X X Extracts X X X X X X X X Extracts X X X X ..... ions are, whether the Tribunal is justified in admitting additional grounds and entertaining the appeal disputing the entire turnover without following the principles laid down in [1977] 39 STC 285 (Mad.) (State of Tamil Nadu v. Siemens Engineering and Manufacturing Company of India Limited) and secondly, whether the Tribunal without appreciating the case independently in the light of the facts involved and with reference to the provisions of the Tamil Nadu General Sales Tax Act, 1959, erred in holding that the assessee is entitled to claim exemption on the basis of the decision in [1978] 42 STC 386 (SC) [Northern India Caterers (India) Ltd. v. Lt. Governor of Delhi]. As regards the first question, it is concluded by a Full Bench of this Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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." Krishna Iyer, J., while concurring with the majority view, in his separate judgment also observed: "The substance of the transaction, the dominant object, the life-style and other telling factors must determine whether the apparent vendor did sell the goods or only supply a package of services. Was there a right to take away any eatable served ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tamil Nadu has not passed any enactment extending the Act to the said sale and as such the Revenue cannot take advantage of the Forty-sixth amendment to the Constitution. The same has been considered in the decision reported in Sree Annapoorna v. State of Tamil Nadu [1986] 63 STC 18, wherein a Division Bench of this Court held: "The latter part of clause (1) of section 6 of the Constitution (Fortysixth Amendment) Act, 1982, only validated the law which was passed or made before the commencement of the said Act, which imposed or authorised the imposition or purported to impose or authorise the imposition of a tax on food and drinks supplied in a hotel or restaurant and if the law thus made, though would have been ultra vires on the ground ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther under the provisions then in force or under the Constitution (Forty-sixth Amendment) Act, 1982." It was further held that when the proceedings were pending in appeal or revision before the appellate or revisional authorities or pending in revision in the High Court, for that matter when a writ petition was admitted and rule nisi was issued, it could not be said that the assessments had become final. It is also held that the question of waiver arose only if the transactions were taxable. The learned counsel submitted that as the subject-matter of [1978] 42 STC 386 (SC) [Northern India Caterers (India) Ltd. v. Lt. Governor of Delhi] was the subject-matter of review before the Supreme Court in [1980] 45 STC 212 and the same was pending ..... X X X X Extracts X X X X X X X X Extracts X X X X
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