9911796707
TMI Blog1990 (8) TMI 380X X X X Extracts X X X X X X X X Extracts X X X X ..... inds of sweets and tiffins are supplied for payment by the dealer. For the year 1979-80, the dealer was being assessed under section 12(4) of the Act where its contention was that the dominant object was rendering service and so the transactions are not exigible to tax under the Act. The Sales Tax Officer, however, held that the dominant object was sale of goods and not service. The dealer preferred first appeal where the Assistant Commissioner confirmed the assessment. In second appeal before the Tribunal, reliance was placed on the decision reported in [1978] 42 STC 386 (SC) [Northern India Caterers (India) Ltd. v. Lt. Governor of Delhi] and it was submitted that the dominant object was rendering service and not sale of goods. However, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ] 45 STC 212 [Northern India Caterers (India) Ltd. v. Lt. Governor of Delhi]. It was observed: "What were the considerations on which this Court held that the transaction was not a sale? The court said, and this was emphasised in no small degree, that the supply and service of food to a customer to be eaten in the restaurant was not a sale for the reason that he was merely entitled to eat the food served to him and not to remove and carry away the unconsumed portion of the food. Had that amounted to a sale, the unconsumed portion would have belonged to the customer to take away and dispose of as he pleased. Besides, the court noted, there were other amenities and services of considerable materiality which were also provided." Ultimately ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the matters were remanded back to the Sales Tax Officer for assessment in accordance with law in the light of observations made in those decisions. 4.. The dominant object of the dealer is an inference on facts of a case to find whether the transaction was sale or service. The finding of the taxing authorities under the Act in that respect would be final. The scope of interference in advisory jurisdiction is limited in respect of a finding of fact and on a question of law only advice is to be given. The writ jurisdiction of this Court is wider to render findings of facts. Accordingly, in this case, there is no scope for interference that dominant object was sale and not service. 5.. It is submitted that section 6(2) of the 46th Amendm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le. Sub-section (1) is in respect of transactions which involved both service and supply of food materials as part of the service. In those matters, section 6(2) gives exemption to the dealer. Non-collection of tax would not give exemption in cases where supply is with dominant object of sale. A dealer has option not to collect tax. Under section 4 of the Act which is charging section, liability is on the dealer. Accordingly, absence of collection of tax where dominant object was sale would not be of any assistance to the dealer under section 6(2) of the Constitution (Forty-sixth Amendment) Act. 6.. On the facts and in the circumstances, it is to be answered that the Member, Additional Sales Tax Tribunal, was justified to hold that transa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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