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TMI Blog2009 (10) TMI 864X X X X Extracts X X X X X X X X Extracts X X X X ..... pondent cannot be sustained in the eye of law. It is clear that section 3D of the Tamil Nadu General Sales Tax Act, 1959, as it stood prior to the amendment, which came into effect, from April 1, 2002, there was no distinction between branded and unbranded food and drinks. As such, sales tax was levied on the food and drinks sold by the petitioner, at two per cent, in accordance with the unamended section 3D of the Tamil Nadu General Sales Tax Act, 1959. Since the assessment years of 1998-99, 1999-2000, 2000-01 and 2001-02, relate to the period prior to the amendment of section 3D, it would not be open to the respondent to levy sales tax at the higher rate of 16 per cent. Also the respondent had erred in relying on the Clarification No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elates to the assessment year 1999-2000. The Writ Petition No. 10157 relates to the assessment year 2001-02. It has been stated by the petitioner that, as per section 3D of the Tamil Nadu General Sales Tax Act, 1959, as it existed up to March 31, 2002, every dealer, whose total turnover is not less than Rs. 25 lakhs for the concerned year, on the sale of food and drinks in hotels, restaurants, sweet stalls and any other eating houses, shall pay tax at the rates specified in Part A of the Ninth Schedule to the Act. Since the petitioner's turnover exceeded Rs. 50 lakhs in a year the petitioner was paying tax at the rate of two per cent on the total turnover of sale of food and drinks. While so, the respondent, by relying on the clarifi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioner, at 16 per cent, is arbitrary, illegal and void. The learned counsel Mr. P. Rajkumar, appearing on behalf of the petitioner, had submitted that the respondent had wrongly levied the higher rate of tax on the food and drinks items sold by the petitioner on the misconception that they are branded items. Further, for the assessment years 1998-99, 1999-2000, 2000-01 and 2001-02, it would not be open to the respondent to invoke the amended version of section 3D, for levying the sales tax on the food and drinks items, sold by the petitioner at 16 per cent. The respondent could have only invoked section 3D, as it stood prior to April 1, 2002 and therefore, the sales tax that could have been levied on such items should have been only ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch came into effect on April 1, 2002. Hence, in our opinion, it was clearly not permissible for the Commissioner of Commercial Taxes to issue a clarification that branded pizza would be taxed at 16 per cent. It has been further stated that the First Bench of this court by its order, dated August 24, 2007, made in W.A. No. 903 of 2007 (Global Franchise Architects India Pvt. Ltd. v. Commercial Tax Officer, Vadapalani I Assessment Circle, Chennai) had also come to a similar conclusion. In such circumstances, the learned counsel for the petitioner had submitted that the proceedings of the respondent, impugned in the present writ petitions, are unsustainable in the eye of law. Per contra the learned counsel appearing on behalf of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ye of law. It is clear that section 3D of the Tamil Nadu General Sales Tax Act, 1959, as it stood prior to the amendment, which came into effect, from April 1, 2002, there was no distinction between branded and unbranded food and drinks. As such, sales tax was levied on the food and drinks sold by the petitioner, at two per cent, in accordance with the unamended section 3D of the Tamil Nadu General Sales Tax Act, 1959. Since the assessment years of 1998-99, 1999-2000, 2000-01 and 2001-02, relate to the period prior to the amendment of section 3D, it would not be open to the respondent to levy sales tax at the higher rate of 16 per cent. Further, in view of the cases cited by the learned counsel for the petitioner, it is clear that the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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