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TMI Blog1994 (8) TMI 271X X X X Extracts X X X X X X X X Extracts X X X X ..... ipur, issued a circular dated September 7, 1983 (annexure 1) directing all its officers to levy and collect taxes from all the hoteliers and restaurateurs treating the service or supplies made by them of the eatables and drinks to their customers as sales after the commencement of the Constitution (Forty-sixth Amendment) Act, 1982. Respondent No. 2 in the said circular referred to a decision of the Supreme Court in Northern India Caterers' case [1980] 45 STC 212 and also had drawn the attention of its officers towards section 4 of the Amendment Act by which a new clause (29A) in article 366 of the Constitution of India defining the term "sale" has been inserted and stated that in view of the amendment in the Constitution the definition of "sale" in section 2(o) of the Rajasthan Sales Tax Act, 1954, now includes the transactions of service or supply of food articles or drinks by the hoteliers or restaurateurs to their customers. The Assistant Commercial Taxes Officer, Ward-I, Sriganganagar, respondent No. 3, had proceeded to levy and collect tax from the petitioner in pursuance of the said circular annexure 1 on the service charges collected by the petitioner from the customers with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he learned single Judge after considering material on record allowed the writ petition and quashed assessment orders in terms of earlier single Bench decision of this Court rendered in Rambagh Hotels Pvt. Ltd. v. Commercial Taxes Officer [1990] 78 STC 35 wherein it has been held that the Constitution (Fortysixth Amendment) Act merely validates earlier laws levying tax on supply of food and drink and it does not authorise levy in future without amendment to State Act. It has been further observed that tax was leviable under new provisions only from date they were introduced, not from date of constitutional amendment. In that case the learned single Judge remanded the matter to the assessing authority to enquire whether sales tax was collected or not by the petitioner from its customer. If it had, the petitioner was not entitled to refund, but if the petitioner had paid the tax without recovering it from its customers, it would be entitled to refund. 7.. Mr. Mehta, learned counsel appearing on behalf of the non-petitionerappellants, has urged that the learned single Judge has erred in not reconsidering Rambagh Hotels Pvt. Ltd.'s case [1990] 78 STC 35 (Raj), which is not a correct l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pply and a purchase of those goods by the person to whom such transfer, delivery or supply is made." 11.. Section 2(t), 2(o) and 2(f) which are also relevant read as under: "2(t).'turnover' means the aggregate of the amount of sale prices received or receivable by a dealer in respect of the sale or supply of goods or in respect of the sale or supply of goods in the carrying out of any contract. Explanation.-Subject to such conditions and restrictions, if any, as may be prescribed in this behalf- (i)..................... (ii) the amount for which goods are sold or supplied shall include any sum charged for anything done by the dealer in respect of the goods sold at the time of or before the delivery thereof." "2(f) 'dealer' means any person who carries on the business of buying, selling, supplying or distributing goods, directly or otherwise, whether for cash or for deferred payment, or for commission, remuneration or other valuable consideration and includes." 12.. In Northern India Caterers (India) Ltd. v. Lt. Governor of Delhi [1980] 45 STC 212 while dismissing the review petition, the apex Court has held as under: ".........Indeed, we have no hesitation in saying t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... les tax. 15.. In Sri Krishna Vilas Tourist Hotel v. State of Karnataka [1991] 80 STC 253 (Ker) the question arose for consideration was whether the assessments, taxing the turnovers relating to the sale of food and drink by the petitioner-restaurant owners for the periods prior to September 7, 1978, are valid in law? A contention was raised by the State that any levy and collection of tax from restaurants and eating-house on supply of food and drink prior to September 7, 1978, does not suffer from any illegality, viz., there was no law to levy tax on the sale of food and drinks during the said period. After considering various decisions including the decisions rendered in Durga Bhavan v. Deputy Commercial Tax Officer [1981] 47 STC 104 (AP), Hotel Dwaraka v. Union of India [1985] 58 STC 241 (AP), Amba Bhavani v. Government of Andhra Pradesh [1986] 63 STC 40 (AP) and Ashoka Hotel and Restaurant v. Additional Superintendent, Commercial Taxes [1988] 69 STC 371 (Pat) the learned single Judge repelled the contention that there was no authority to levy tax on sale of food or drink before the Constitution (Forty-sixth Amendment) Act. 16.. In Commissioner of Sales Tax v. Northern Rail ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion is altogether different as now the burden was on the dealer. Though it has been argued before us by the counsel for the respondents on the strength of the decision of learned single Judge of this Court rendered in Rambagh Hotels Pvt. Ltd.'s case [1990] 78 STC 35 that Forty-sixth Amendment Act merely validates earlier laws levying tax on supply of food and drink and it does not authorise levy in future without amendment to State Act, we don't find any substance in view of the decision of their Lordships of the Supreme Court in said review order in Northern India Caterers (India) Ltd.'s case [1980] 45 STC 212 as the declaration of law made by the apex Court must be deemed to be the legal position in existence all through being law of the land. Admittedly all these matters relate to period prior to amendments made in the Rajasthan Sales Tax Act. Therefore, they are all governed by the decision of the apex Court rendered in Northern India Caterers (India) Ltd.'s case [1980] 45 STC 212 and it is not necessary to go into the questions canvassed by the respondents particularly when no specific finding whether the dominant object of an eating-house or a restaurant, the transaction was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Appeal No. 410/91) 19. State v. Agra Sweet Home (D.B. Special Appeal No. 411/91) 20. State v. Hotel Hilton (D.B. Special Appeal No. 413/91) 21. State v. Agra Sweet Home (D.B. Special Appeal No. 414/91) 22. State v. Lovely Sweet House (D.B. Special Appeal No. 419/91) 23. State v. Himmat Singh (D.B. Special Appeal No. 418/91) 24. State v. Hotel Hilton Pvt. Ltd. (D.B. Special Appeal No. 448/91) 25. State v. Agra Sweet Home (D.B. Special Appeal No. 535/92) 26. State v. Maharaja Sri Ummed Mills Ltd. (D.B. Spl. Appeal No. 437/93) 27. State v. Lovely Sweet House (D.B. Special Appeal No. 16/92) 28. State v. Samosa House (D.B. Special Appeal No. 567/93) 29. State v. Rameshwar Lodge (D.B. Special Appeal No. 568/93) 30. State v. Lovely Sweet House (D.B. Special Appeal No. 569/93) 31. State v. Sri Narayan Niwas-Palace (D.B. Special Appeal No. 570/93) 32. State v. Maharaja Ummed Mills (D.B. Special Appeal No. 607/93) 33. State v. Govind Hotel (D.B. Special Appeal No. 739/93) 34. State v. Bombay Boarding Lodge (D.B. Special Appeal No. 68/94) 35. State v. Milkh Raj (D.B. Special Appeal No. 117/94) 36. State v. Mahavir Lodge (D.B. Special Appeal No. 125/94) 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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