9911796707
TMI Blog2015 (12) TMI 240X X X X Extracts X X X X X X X X Extracts X X X X ..... lso are to be considered as branded items and therefore, levy of tax on such branded food and drink items would be at 14.5% as prescribed under Section 7(1)(a) of the TNVAT Act, 2006 and the respondent has rightly passed the impugned assessment order. It is brought to the notice of this Court that by mistake, the above said provision has been wrongly mentioned, however, in the notice, dated 3.12.2014, the respondent has mentioned that it was proposed to revise the assessment under Section 25(1) of the TNVAT Act, 2006, as per which, the authority is empowered to determine the tax payable by the dealer to the best of its judgment.Therefore, as per Section 3(2) of the TNVAT Act, 2006, the petitioner is liable to pay tax at 14.5%. - No illegality or irregularity in the impugned order, dated 5.1.2015 passed by the respondent in order to interfere with the same - Decided against assessee. - W.P.NO.2733 OF 2015 AND - - - Dated:- 4-8-2015 - MR. S.VAIDYANATHAN, J. For petititoner : Mr. Joseph Prabakar For Respondent : Ms. Dr.Anita Sumanth, Spl.G.P. Asstd. By Mr.V.Haribabu, AGP (T) and Mr. AN.R.Jayapratap, AGP (T) ORDER The petitioner, Zaitoon Multi Cuisine Famil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 7 (1)(a) of TNVAT Act, 2006, hence the Assessing Officer, has passed the impugned order assessing turnover at 14.5%.It is stated that the impugned order has been passed only after issuing pre-revision notice dated 3.12.2014 and after considering the objections filed on 18.12.2014.The petitioner got registration under Trade Marks Act having Registration No.2132496 by which it is evident that they are selling only branded food items taxable at 14.5% as per Section 7(1)(a) of TNVAT Act, 2006.The contention of the petitioner that Zaitoon must be construed as a house mark (house name) and not as a product mark (brand name), is not acceptable since the food items that are prepared and sold in the hotel which was having a house mark are synonymously bear the trade made on their products. Therefore, the food items sold by the petitioner are branded food taxable at 14.5%.The petitioner is a trade, manufacturing and selling food items to the customers which is coming under the purview of sales tax rules and not any relevance with service tax. The petitioner got the registration under Class 43, which is meant for services for providing food, drink and temporary accommodation. But t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of the mark or name for any service including services for providing food and drink and temporary accommodation and hence, mere applying for registration under the Trade Marks Act, 1999 by the petitioner, it would not mean that they are selling branded food. 6. With the above contentions, the learned counsel would submit that the impugned assessment order passed by the respondent cannot be sustained and it is liable to be set aside.As regards the alternative remedy, the learned counsel would contend that since the impugned order has been passed in violation of principles of natural justice without giving personal hearing to the petitioner, the petitioner can work out the remedy by invoking extraordinary jurisdiction under Article 226 of the Constitution by way of writ petition and hence, the writ petition is maintainable. 7. On the other hand, the learned counsel appearing for the respondent would contend that admittedly, the petitioner got registration under the Trade Marks Act and selling only branded food prepared by them which attracts tax at 14.5% as per the provisions of the TNVAT Act, 2006 and the respondent having served the pre-revisional notice, dated 3.12.2014 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er is only serving the food which are exclusively prepared by them and a customer who enters the restaurant of the petitioner by recognizing the name Zaitoon , he would be ensured that the food items prepared by the petitioner Zaitoon Restaurant alone would be served to him. If the petitioner is serving the food items which are not prepared by it, the matter is altogether different and there would be no purpose in getting trade mark. Therefore, when the petitioner restaurant Zaitoon has got registration of trade mark for services providing by it, certainly, the food items prepared and served by them would fall within the definition of branded . 10. Section 7(1)(a) of the TNVAT Act, 2006 reads as under: Levy of taxes on food and drinks.-(1) Notwithstanding anything contained in this Act, but subject to the provisions of this Act,- a) every dealer shall pay tax on the sale of ready to eat unbranded foods including sweets, savouries, un-branded non-alcoholic drinks and beverages served in or catered indoors or outdoors by star hotels recognized as such by Tourism Department of the State Government or Government of India and restaurants attached to such hotels at the rate o ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
