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TMI Blog2023 (6) TMI 842X X X X Extracts X X X X X X X X Extracts X X X X ..... e entry by the respondent. ii) Whether in the facts and circumstances of the case the Rajasthan Tax Board was justified in law in deleting the tax and interest without appreciating the provisions pertaining to "Sale" as contemplated u/s 2(35) of the Act and "Sale Price" as contemplated u/s 2(36) of the Act." 2. Since common issue is involved in all these STRs, STR No. 63/2020 is taken as lead file to peruse the facts and with the consent of the parties, all these STRs were heard together. 3. Learned counsel for the revenue submits that a survey was conducted of the premises of the assessee on 14.07.2010 wherein it was discovered that the assessee, which is engaged in the business of restaurants and resorts, was issuing 'entry coupon' at the entry gate of the premises to its customers and charging Rs. 350/- per adult and Rs. 175 per minor. The said charge, as per the entry coupon, is only adjustable against food. However, the assessee was only paying VAT on Rs. 250 (in case of adults) or Rs. 125 (in case of children) and the remaining amount, i.e. Rs. 100 (in case of adults) and Rs. 50 (in case of children) was reflected separately in the assessee's books of accounts under the h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also taken by the survey team of department. The Tax Board has also taken note of the fact that the assessee was indeed issuing invoices in which charge towards food and entertainment services were separately reflected. 8. Learned counsel for the assessee contends that in view of the undisputed fact that the assessee was preparing invoices showing amount being charged separately towards sale of foods and towards entertainment supply, the coupon cannot be made a basis to reach a basis to reach a conclusion against the assessee as the coupons were being issued merely for administrative and managerial purposes to keep control over various daily activities. The mere mentioning of the term 'adjustable in food only' in such coupon is not conclusive and cannot be read in isolation and such phrase was only used to avoid any possibility of misuse by a customer towards another chargeable entertainment activity. 9. Learned counsel for the assessee further submits that the case of the assessee cannot be equated with any another restaurant serving food as the assessee is not strictly engaged in the hospitality or restaurant business, but is rather predominantly engaged in entertainment busine ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd Rs. 175/- per child. A sample coupon for illustrative purpose is reproduced as under: b.) That out of the total amount mentioned in the entry coupon, and collected from the customers by the assessee for food, the assessee was only paying VAT on Rs. 250 (for adults) and Rs. 125 (for children), even though the entry coupon specifically mentioned 'adjustable in food only'. c.) That the assessee charges separately from the customers for additional services provided inside the premises. d.) That as a standard practice, invoice is not provided to the customers in regular course and is only provided in case some customer specifically requests it, as an exception. e.) That in their books of accounts, the assessee were bifurcating the amount charged while issuing entry coupon under two heads; one for food and another for generation of cultural receipts, admin expenses, maintenance, etc. f.) That the invoices purportedly issued were only produced for the first time before the Tax Board and were never produced before assessing officer or the appellate authority. 13. The first and foremost thing that is noted is that the assessee was issuing entry coupon which contained the speci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... levy or any sum charged for anything done by the dealer in respect of the goods or service rendered at the time of before the delivery thereof, except the tax imposed under this Act; Explanation 1:- In the case of a sale by hire purchase agreement, the prevailing market price of the goods on the date on which such goods are delivered to the buyer under such agreement, shall be deemed to be the sale price of such goods; Explanation 2:- Cash or trade discount at the time of sale as evident from the invoice shall be excluded from the sale price but any ex post facto grant of discounts or incentives or rebates or rewards and the like shall not be excluded; Explanation 3:- Where according to the terms of a contract, the cost of fright and other expenses in respect of the transportation of goods are incurred by the dealer for or on behalf of the buyer, such cost of freight and other expenses shall not be included in the sale price, if charged separately in the invoice;" 15. On a conjoint reading of the above two definitions, it is abundantly clear that the assessee cannot split up the amount charged for the sale of food, even if assessee provides certain services in addition to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the innate cost of the bread, butter, mustard and cheese in the plate is very much less, but he orders it all the same. He pays Rs. 50 for its supply and it is on Rs. 50 that the restaurant owner must be taxed." 16. In the opinion of this Court, the dictum of the above quoted Apex Court judgment is squarely applicable in the instant case. 17. Furthermore, the contention of the assessee that as per aspect theory, the dominant supply was of supply of entertainment/service is also untenable for the following reasons: 17.1) Because it is an admitted position that no one is allowed entry if they only want to have the cultural experience, entry coupon which is adjustable only against food is a must. 17.2) Because the assessee is charging separately for the services provided inside the premises. Had this been a case where the assessee was charging a flat rate for a combined experience, this contention of the assessee might have been worth consideration. But since the assessee is admittedly charging separately for the services, it cannot be said that the dominant purpose of the entry coupon was for providing entertainment/services where the supply of food is only incidental. 17.3) Be ..... X X X X Extracts X X X X X X X X Extracts X X X X
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