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TMI Blog1992 (5) TMI 183X X X X Extracts X X X X X X X X Extracts X X X X ..... ed in the sale of sweetmeats and other preparations made by halwais. It has two shops. In these shops, besides the sweetmeats and other halwai preparations, soft drinks like Coca Cola, tea, coffee and confectionery items, squashes, juices, etc., are also sold. Arrangements for the comfortable sitting of the customers have been made in the premises. The controversy in these references relates to the assessment of the respondent-firm for the years 1969-70 to 1973-74. The Assessing Authority came to the conclusion that the respondent-firm was running two eating establishments which have the trappings of posh restaurants. They are not halwai shops. Therefore, he disallowed the respondent-firm benefit of deductions under entry 50 of Schedule "B" to the Punjab General Sales Tax Act, 1948 (hereinafter referred to as "the Punjab Act") as applicable to the State of Haryana. This entry was deleted vide Notification dated December 1, 1972 and no such or similar entry has been enacted in the Schedule to the Act, which came into force on May 3, 1973. On an appeal filed by the respondent-dealer, the appellate authority came to the conclusion that the expression "exclusively" used in entry 50 was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssing Authority was not justified in levying sales tax against the petitioners on their gross turnover, for that turnover is confined to sales only of sugar and other articles which at this stage are admitted to be articles ordinarily prepared by halwais." The Excise and Taxation Commissioner, Punjab, went up in letters patent appeal against the aforementioned judgment reported as Excise and Taxation Commissioner v. Shiv Ram [1964] ILR 1 Punj 622. Honourable Judges of the Division Bench noticed that in three different cases three other honourable Judges of this Court, viz., Grover, S.B. Kapoor and Mehar Singh, JJ., sitting singly, had interpreted entry 50, ibid, in the same manner and had assigned the same meaning. The Division Bench affirmed the findings in Shiv Ram's case [1961] 12 STC 554 and dismissed the appeal of the department. It was observed: "It is thus clear that four of the learned Judges of this Court have come to a single conclusion regarding the correct interpretation of item 50 and I myself have no doubt that this is the correct interpretation." Entry 72 in Schedule "B" to the Punjab Act has been couched in similar language. Interpreting the entry another Divi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s pronounced that if the establishment is carrying on the business of dhaba exclusively and is not doing any other business whatsoever, then he is entitled to exemption provided in entry 72 of Schedule "B". The two views are irreconcilable. Sitting in a Division Bench ourselves, we cannot pronounce as to which of the two views is not correct one or to resolve the conflict. Consequently, we direct that the papers of this case be placed before the honourable Chief Justice for decision of this case by a Full Bench. In pursuance of the abovesaid order of reference the petition came up for hearing before the Full Bench. D.D. Vasudeva, A.A.G., Haryana, for the appellant. R.P. Sawhney, for the respondent. JUDGMENT G.C. GARG, J.-This judgment will dispose of General Sales Tax Reference Nos. 5 to 9 of 1980, the question referred to this Court for opinion being identical. References relate to assessment years 1969-70 to 1973-74 in respect of the same assessee. The Sales Tax Tribunal, Haryana, has referred the following question of law for opinion of this Court: "Whether, in the facts and circumstances of the case and the legal position as enunciated by the honourable High Court o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... see, the learned Tribunal came to the conclusion that the word "exclusively" had been used in a different sense in entry 50 and was meant to exempt sales tax only on the sweetmeats and eatables ordinarily prepared by halwais and sold by them. Reliance for this view was placed on the judgment of this Court in Shiv Ram's case [1964] ILR 1 Punj 622. It was also noticed by the learned Tribunal that there was a difference between entry 72 and entry 50. The net conclusion of the learned Tribunal is that a halwai is entitled to claim exemption from sales tax under entry 50 in respect of sale of articles ordinarily prepared and sold by halwais. A further finding of fact was also recorded that the assessee in the present case is a halwai and be treated as such for taxing his sales. The learned Tribunal also noticed that entry 50 has been deleted with effect from December 1, 1972 and the exemption will not be available thereafter even to a halwai. In the references, it is not disputed by either of the parties that the assessee is to be treated as a halwai during the relevant assessment years and that the exemption under entry 50 stood withdrawn by deletion of entry 50 after December 1, 197 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ely" has apparently been used to emphasize that the exemption is available to halwais only on the sale of articles ordinarily prepared by halwais and these very articles will be subject to tax when sold by any other person/ establishment. The use of word "exclusively" goes with the word "halwai". It cannot be read with the word "articles" appearing in column 1 of the entry as that would mean exemption from payment of tax is available to a halwai when he sells the articles prepared by halwais exclusively and would lose the benefit of exemption by selling any other item, whether subject to tax or not, along with exempted articles, even in respect of exempted articles. The entry is specific. It cannot be read to mean that exemption from payment of tax is available to a dealer when he sells the articles exclusively and the exemption stands withdrawn when he sells even a packet of nutties in addition to articles mentioned in column 1 of the Schedule. Exemption from payment of tax is to the articles when sold by a specific person and not to any other person selling these very articles. The exemption is in favour of a named dealer only. A halwai selling articles detailed in column 1 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to look merely at what is clearly said. There is no room for any intendment. There is no equity about a tax. There is no presumption as to a tax. Nothing is to be read in, nothing is to be implied. One can only look fairly at the language used.' It is a rule firmly established that 'the words of a taxing Act must never be stretched against a taxpayer'. If the Legislature has failed to clarify its meaning by use of appropriate language, the benefit must go to the taxpayer." The provisions of entry 50 fell for consideration before a single Bench of this Court on an earlier occasion as well in the case of Shiv Ram v. Excise and Taxation Commissioner [1961] 12 STC 554, wherein it was held as under: "I think the word 'exclusively' in item No. 50 obviously goes with the word 'halwais' and what the item means is that when the articles ordinarily prepared by halwais are sold by halwais they are exempt from sales tax, but when such articles are sold by persons other than halwais they are not exempt from the same. So a halwai can sell articles ordinarily prepared by halwais and he can also sell any other articles. He will be exempt from sales tax in regard to articles ordinarily prepared ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t articles, but in similar terms as entry 50, came up for consideration before a Division Bench of this Court in Deluxe Dhaba's case 1973 RLR 350 in which a contrary view was taken. The question that came up for discussion before the Bench was formulated in the following terms: "Whether, M/s. Deluxe Dhaba is entitled to exemption with regard to the Indian food preparations under entry 72 in Schedule B to the Punjab General Sales Tax Act (46 of 1948)?" The Bench noticed that while granting exemption to Indian food preparations under entry 72, tea had not been included therein and the assessee was thus, not entitled to exemption with regard to sale of tea, biscuits and Coca Cola, etc. It was found that the assessee was not doing the business of tandoorwalas and dhabawalas exclusively as he was also selling tea and soft drinks, etc., and the two businesses formed part of the same establishment. In this context, it was held as under: "In view of these facts, it cannot be held that appellant-establishment is carrying on the business of dhaba exclusively and, therefore, is not entitled to the exemption provided in entry 72 of Schedule B to the Act. That exemption is available only ..... X X X X Extracts X X X X X X X X Extracts X X X X
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