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TMI Blog1997 (5) TMI 401X X X X Extracts X X X X X X X X Extracts X X X X ..... ing food and drinks was by way of service and not by way of sales. This contention was not accepted by the assessing officer. On first appeals, the Assistant Commissioner (Judicial), Sales Tax, held that a part of the supplies of food and drinks was by way of counter-sales that were taxable under the Act while the rest of the supplies to the residents in the hotel and to outsiders in the restaurant was by way of service. The dealer as well as the Commissioner appealed to the Tribunal which held that the dominant object in the entire activity was sale of goods and, therefore, the entire receipts on account of supply of food and drink was taxable turnover under the Act. Feeling aggrieved, the dealer has preferred these revision petitions: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt 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. But India is India. It lives in its one lakh villages, thousands of towns, millions of pavement pedlars and wayside 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 ho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e dominant object in the supply of food and drinks is sale of goods. The learned counsel for the revisionist challenged this finding of fact. It was contended that this Court has laid down that where the customer has no right to take away the food outside the restaurant, the activity has to be deemed to be rendering of service. Reliance is placed on a judgment of a learned single Judge in Commissioner of Sales Tax v. Elchico [1982] UPTC 789. In this case, the learned single Judge observed as under: 3. Music, light, air-cooling, elegant furniture, fine linen, costly crockery, etc., are modern must for an urban restaurant for survival. These are amenities provided to attract customers in a competitive market. In inferring from these, serv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s sale or service has been narrowed, by, what has been said, supply and service of food to a customer to be eaten in the restaurant was not a sale for the reasons 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. As in this case it has been found as a fact that customers were prohibited from carrying away the unconsumed portion of food the case of assessee was squarely covered in the ratio laid down in it. 5.. The same view was repeated by the learned single Judge in Commissioner of Sales Tax v. Moti and Jawahar [1982] 50 STC 172 (All.); 1981 UPTC 1132. The earlier judgment of the honourable Supreme Court having been explained in the subsequent judgment, that is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act and it is after the judgment of the honourable Supreme Court, referred to above, that like all others, it too started asserting that its dominant object was rendering of service. 7.. It has contended that in the preceding years, the Tribunal had held that the revisionist s activity amounted to rendering of services. Copies of the Tribunal s order for the assessment years 1972-73 to 1974-75 and 1975-76 have been annexed to the writ petition. Every year is an independent year and as is evident from the order of the Tribunal, this year, the matter had been examined in greater detail. Therefore, the Tribunal s order does not get vitiated simply because it did not follow the orders for other years and on an independent examination of the f ..... X X X X Extracts X X X X X X X X Extracts X X X X
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