M/s. Deluxe Dhaba Ambala Cantt vs State of Haryana and others

R.S. Narula, J.—Questions relating to the proper interpretation and true scope of entries 16, 18 and 72 of Schedule ''B'' to the Punjab General Sales Tax Act (46 of 1948) (hereinafter called the Act) as applicable to the State of Haryana, have been raised in this petition under Article 526 of the Constitution for quashing the orders of the Sales-tax authorities levying sales-tax on the petitioner in respect of the year 1966-67, for sale of cooked food preparations treating the petitioner as a ''restaurant'' and holding that the said cooked food etc. had not been sold at a Dhaba. Delux Dhaba is an eating house on the Railway Road in Ambala Cantt. According to the petitioner, the business belonged in 1967 to the joint Hindu family consisting of Chandu Ram and his three sons, Girdhari Lal, Som Nath and Madan Lal. This petition has been filed through Madan Lal. Though business was being carried on since 1962, it was only on December 30, 1967, that the Sales-tax Inspector recorded the statement of Madan Lal who described himself at that time as the proprietor of the "Deluxe Dhaba". In that statement it was admitted that he had been running the Dhaba for about four or five years and that he had employeed five servants on payment of salary of Rs. 150/- per mensem in addition to tea and food. He stated that he was paying Rs. 114/- per mensem as rent of the Dhaba and that besides four persons who look food at the Dhaba on monthly basis, he used to have about 50 to 60 daily customers for taking meals and tea at both the times. He added that he was not maintaining any account at that time and undertook to appear before the Excise and Taxation Officer as and when desired by him.

On April 4, 1968, notice in prescribed form S.T. XIV (copy Annexure ''B'') was issued to the petitioner under sub-section (6) of section 11 of the Act requiring the petitioner to appear before the Excise and Taxation Officer on April 8, 1968, as the Assessing Authority was satisfied on information which had come to his possession that the petitioner had been liable to pay tax under the Act in respect of the period commencing from April 1, 1963, and ending on March 31, 1968, but the petitioner had wilfully failed to apply for registration u/s 7 of the Act. In that notice, the petitioner was also called upon to produce or cause to be produced the accounts and documents for the purpose of assessment together with any objections which he may wish to prefer, and also to show cause why in addition to the tax being assessed on him, a penalty not exceeding one and half times the amount should not be imposed on him u/s 11(6) of the Act. He was told that in case of his failure to comply with the notice, proceedings would be taken against him ex-parte and "best judgment assessment" would be made.

This notice (Annexure ''B'') was served on Chandu Ram, Karta of the joint Hindu family, who is admittedly one of the proprietors of the petitioner concern. No one appeared before the Excise and Taxation Officer on April 8, 1968; in pursuance of that notice. A memorandum was then issued to the petitioner to appear on April 22, 1968. On that day, the petitioner appeared and made a statement of which Annexure ''C'' to the writ petition is a copy. In that statement he gave the names of his five servants, but alleged that except for the cook to whom he was paying Rs. 50/- per mensem, the other four servants were getting only Rs. 25/- per mensem. He gave the seating capacity of his eating house at 53 and admitted that there was a provision for cabins fined with fans and call-bells at his place. He gave the estimate of daily sales at Rs. 50/- and stated that no accounts were maintained and no cash-memos were issued. He undertook to issue cash memos from the next day and to submit monthly returns to the Salestax Office. He stated that he purchased provisions etc. in retail from the market and did not maintain any account with any shopkeeper.

After recording the statement of Madan Lal, the Assessing Authority passed an order on April 22, 1968 (Annexure ''D'') directing the petitioner to keep regular accounts, to issue cash-memos and to submit monthly returns. In the same order, the Assessing Authority directed the Tax Inspector to make local enquiries about the extent of the petitioner''s business and to submit his report early. Ex-parte local enquiries were thereafter made by the Tax Inspector on the abovementioned point. Petitioner''s case is that he had before filing this writ petition asked for copies of the inspection note and report from the Tax Inspector by letter, dated May 28, 1970, but the Excise and Taxation Officer declined to furnish the copies in question as those were treated as confidential. Copy of the order of the Excise and Taxation Officer is Annexure ''E'' to the petition.

After completing local enquiries, order Annexure ''F'' was passed on June 6, 1968, in the following words:-

Local enquiries have been completed. Issue S.T. XIV for 10th June, 1968.

This notice was served on Dyal Chand, the son-in-law of the Karta of the joint Hindu family. Petitioner claims that that was no good service as Dyal Chand was neither a partner, nor an employee of the firm. No one appeared before the Assessing Authority in response to that notice. It is said that another notice was issued requiring the petitioner to appear before the Assessing Authority on August 8, 1968. Ultimately Shri Raghbir Singh, Excise and Taxation Officer, Ambala, passed a detailed order (Annexure ''G'') on October 30, 1968. In the absence of any books of account, the assessment was made on best judgment basis. The Excise and Taxation Officer observed that he had personally inspected the business premises of the petitioner and had made local enquiries about the extent of business done by him. The petitioner was stated to be running a good hotel known as "Deluxe Hotel" near Railway Station, opposite D-Metropole Hotel, Ambala Cantt. The approximate number of plates of different cooked food preparations which the petitioner was selling on the average everyday was worked out on the basis of local enquiries said to have been made by the sales-tax authorities. The fact that apart from the business of catering meals, the petitioner was also selling Coca Cola, tea, coffee, biscuits and the like, was also taken into consideration. Large number of customers were found by the Assessing Authority at the Dhaba in the evening and it was stated that it was found open even beyond midnight on some days. The eating house was described to have been equipped with twenty-four seats of sofa-sets, thirty-two chairs in the cabins and about twelve chairs outside for the customers. Dining tables were stated to have been fitted with Sunmica boards According to the Assessing Authority the "restaurant" gave a very good look and it was situated near the Ambala Cantt, Railway Station.

On the basis of the material referred to in the order, the total daily sales were calculated by the Excise and Taxation Officer to be Rs. 430/-. After allowing a margin for the meals which were served to the servants and to about three or four members of the family who were managing the show, the estimated daily sales were slashed down to Rs. 300/-. A finding was recorded to the effect that the sales of the petitioner exceeded that taxable quantum of Rs. 25,000/- on July 1, 1966. On the basis of the daily sale of Rs. 300/-, the petitioner was held to be liable to pay sales-tax with effect from that day. A direction was given to inform "Deluxe Hotel and Restaurant" accordingly. Though it is nobody''s case that the petitioner s business-house has ever been known as "Deluxe Hotel and Restaurant" or even as a restaurant at any time, the Assessing Authority described it as a hotel and restaurant in his order. Though Madan Lal petitioner in his statement dated April 22, 1968, clearly stated that he was running ''''this Dhaba" since 1962-63, and though sales of Indian food preparations ordinarily prepared and sold by persons running Dhabas exclusively were admittedly exempt from levey of sales-tax, no clear and distinct finding on the question whether the petitioner''s concern was a ''Dhaba'' or a ''Restaurant'' was recorded by the Assessing Authority.

The case was thereafter taken up by Shri B.R. Gupta, the 5th respondent, who was Assistant Excise and Taxation Officer. On being seized of the case, he put up a note to the 4th respondent, who was the Excise and Taxation Officer (Copy Annexure ''H'') on December 2, 1968 requesting the Excise and Taxation Officer to pass specific orders on the question whether the dealer was running a Dhaba or a restaurant as a Dhaba would be exempted from January 10, 1967, whereas a hotel or a restaurant would continue to be assessed to sales-tax even thereafter. On that note, Mr. Raghbir Singh, the Excise and Taxation Officer, passed the following ex parte order without sending for the petitioner and without holding any further enquiry.

Messrs Deluxe Dhaba, Railway Road, is definitely a Restaurant and not a Dhaba and shall be assessed as Restaurant.

A copy of that order is Annexure ''J'' to the petition.

After having been armed with the abovequoted finding of the Excise and Taxation Officer, fresh notice in from S.T. XIV (copy Annexure ''K'') dated December 4, 1968, was issued by the Assistant Excise and Taxation Officer to the petitioner. In that notice it was stated that it appeared to be necessary to make an assessment under sub-section (3) of section 11 of the Act in respect of the year 1966-67, and, therefore, the petitioner should produce or cause to be produced on December 16, 1968, the accounts and documents for the purpose of assessment together with any objections which he might wish to prefer, and show cause on that day as to why in addition to the tax, penalty should not be imposed upon him. In response to that notice Madan Lal of the petitioner concern appeared before Shri B.R. Gupta and made statement Annexure ''L''. He categorically asserted before that authority that his was a Dhaba and not a Hotel or a Restaurant. He emphasised that there were no rooms for the visitors and that they had no cooking place inside the premises, but arrangements for cooking had been made in front of the premises which gave it the character of a Dhaba. He also stated that this was a Hindu undivided family concern of his father, himself and his two brothers, but that his brother-in-law Dayal Chand who had left the army about two years previously also helped them in the business for the last one year or so prior to which he was at Jullundur. Madan Lal made it clear that Dyal Chand was, however, neither a partner nor a proprietor of the concern. He gave estimates of his daily sales and of purchases of some of the raw materials. In the opening part of his statement he did not specify the year to which the figures given by him related, though it could be presumed that he was expected to talk about the year under assessment i. e. 1966-67. He then stated that those figures related to 1967-63, and a little later further amended his statement by saying that they related to 1968-69. He gave an estimate of the sale of eggs at rupees five to rupees seven per day. No books of account were produced.

The first impugned order Annexure ''M'' was thereupon passed by respondent No. 5 on December 16, 1968. The Assistant Excise and Taxation Officer went into the question whether the petitioner concern was a Dhaba or a Restaurant. After taking into account the object of exempting Dhabas from sales-tax, that is to give relief to the poor sections of the society, the meaning of the expression "Dhaba" as understood in common parlance and after taking into consideration the outer look and appearance of the establishment, the type of furniture and crockery, the method of charging and the rates charged for the meals, etc., he came to the conclusion that though the use of the name ''Dhaba'' or ''restaurant'' was not conclusive, the petitioner concern appeared to be a restaurant to an onlooker even at the first sight. On the quantum of sales and turnover, he concurred with the finding arrived at by the Excise and Taxation Officer. After giving rebate to the petitioner for two exempted items, he worked out the taxable turnover to be Rs. 69, 811.33P. and assessed the same to tax of Rs. 4,188. 68P. at the rate of six per cent. In addition, a penalty of Rs. 1,000/- was imposed u/s 11(6) of the Act.

The petitioner preferred two appeals: one against the order of Shri Raghbir Singh (Annexure ''G''), and the other against the order of Shri B.R. Gupta (Annexure ''M''). The first appeal was disposed of by the order of the Deputy Excise and Taxation Commissioner (Appeals), Ambala (Annexure ''N''), dated September 29, 1969. After discussing that matter in detail, he came to the conclusion that the petitioner concern had been rightly held to be a restaurant and it was not a Dhaba. He, however, slashed down the amount of daily sales from Rs. 300/- per day found by the Assessing Authority to Rs. 200/- per day. Since the taxable turnover would have been reached at Rs. 200/- per day later than it would have been reached at the rate of Rs. 300/- per day u/s 4(2) and taxable quantum having been fixed at Rs. 25,000/- u/s 4(5)(bb), tax was held to be leviable with effect from August, 10,1966. Partial relief was allowed to the petitioner by the appellate authority. The other appeal of the petitioner (against the order of Shri B.R. Gupta) was also partially allowed by the order of the appellate authority of the same date (September 29, 1969), copy of which order is Annexure ''O''. In consequence of the relief granted in his earlier appellate order, the amount of tax was brought down to Rs. 2,457.92 P. and the amount of penalty was also reduced to half, i.e. to Rs. 500/- in place of Rs. 1,000/-.

Two separate second appeals were preferred by the petitioner against the orders of the appellate authority to the Sales Tax Tribunal. Both those appeals were dismissed by the common judgment of the Sales Tax Tribunal, Haryana, dated April 22, 1970 (Annexure ''P''). There after the petitioner made an application to the Sales Tax Tribunal u/s 22 of the Act for referring the following ''legal propositions" to this Court as those propositions were alleged to arise out of the impugned judgment of the appellate Tribunal:-

(i) Whether a proper notice in form S.T. XIV has been issued to the dealer giving him a clear notice that the establishment is a Restaurant and not a Dhaba, and that he has the right to lead evidence as in the notice of Hindi these words do not find place and are omitted but appear in the standard S.T. Form XIV?

(ii) Is a proper notice as contemplated by the East Punjab General Sales Tax Act and the Rules made thereunder issued to Madan Lal the affected person as the service has not been effected on him but on an unauthorised person, Shri Dyal Chand, who is neither a duly authorised agent nor an employee or a member of the family?

(iii) Whether the law contemplates the passing of two separate orders, one for determining liability and the other determining the taxable turnover and if not are these proceedings and the judgments liable to be quashed on this ground alone without going into the question of prejudice?

Whether for proving prejudice proper opportunity has been afforded? It has certainly caused prejudice to the applicant.

(iv) Whether the judgments based on private enquires and reports are legal and proper and whether it was incumbent upon the authorities to bring the substance of these to the notice of the assessee applicant and whether he has been given the proper opportunity to disprove the facts contained in private reports and enquiries? The judgments of the Assessing Authority and the Appellate Authority are based on private and local enquiries of which no notice was ever given to the applicant.

Does the non-mention of this ground of attack in the Grounds of Appeal preclude the applicant from agitating this point which is apparent on the face of the record? Did the Tribunal act legally in not permitting this point to be argued?

(v) Did the Assessing Authority act legally in refusing to grant adjournment to the applicant-assessee on 16th December, 1968, in spite of his request to afford him opportunity to lead evidence? Is the Tribunal''s judgment correct in holding that such a request was not made when this fact is against the record?

(vi) Whether the cooked vegetables, meat or fish are exempt as per items 16, 17, 18 of Schedule ''B'' attached to the East Punjab General Sales Tax Act, 1948, and as such exempt under item No. 72 for the reason that the cooked vegetables, etc., do not change their character and because they are not sold in tins or cartons?

(viii) Could the liability to pay sales-tax on the the sales of the cooked food be fixed with retrospective effect and if so, has it been rightly fixed as determined?

(viii) Is the decision that the applicant''s establishment is not a Dhaba legally correct when the decision by the Assessing Authority was actually made on 2nd December, 1968 though the judgment was conveyed on 30th October, 1968? Order dated 2nd December, 1968 was niether communicated nor brought to his notice.

(ix) Is the impugned judgment sustainable when no finding has been given that the owner is not giving personal service a fact which is the determining factor under item No. 72 and also on the ground that the entire material placed on the record has not been considered.

(x) Is the finding that the establishment is not a Dhaba, sustainable on the facts such as the quality of furniture of quantum of dishes served? Under law what constitutes a Restaurant as distinguished from ''Dhaba'' as the English word "Restaurant" means "an eating (erroneously mentioned as meeting) place" and whether those ingredients are not present in this case?

As a matter of fact these attributes are present in the instant case.

(xi) Did the authorities follow the correct procedure as contemplated by the Act and the Rules and if not are the judgments legally sustainable?

(xii) Whether the non-mention of any ground of attack in the grounds of appeal when the matter is purely legal and apparent on the face of the record is a sufficient ground for the Tribunal not to permit the arguments especially when it goes to the root of the case and jurisdiction.

A copy of that application for making reference has today been placed on the record of this petition by the Learned Counsel for the petitioner in connection with an objection of a preliminary nature raised by Shri Naubat Singh, the Learned Counsel appearing for the respondents. It was to gel the above mentioned orders of Shri Raghbir Singh, Shri B.R. Gupta, the Appellate Authority and the Sales Tax Tribunal (Annexures G, M, N, O and P respectively) quashed that the present writ petition was filed on August 10, 1970. Respondents 4 and 5 to whom notice of motion was issued did not care to put in appearance and the writ petition was, thereafter, permitted on September 7, 1970.

The petition has been contested by the respondents. In their written statement filed by the Excise and Taxation Officer-cum-Assessing Authority, Ambala, it has been averred that it was not necessary to associate the petitioner in the enquiries which were being conducted to determine the extent of petitioner''s business for the purpose of fixing his liability, that the copies of the documents asked for by the petitioner were declined as those copies were considered to be unpublished record and did not come within the purview of public documents, that the petitioner was duly heard on all the relevant points before framing the assessment, that Dyal Chand had in his own statement, dated May 1, 1968, before the Assessing Authority (Annexure R/1) deposed that he was a partner of the establishment, that Dyal Chand was the brother-in-law of Madan Lal petitioner as admitted by Madan Lal in his statement Annexure ''1'' (of which another copy has been filed as Annexure R/2), that after passing the order dated October 30, 1968, Shri Raghbir Singh transferred the file to Shri B.R. Gupta, Assistant Excise and Taxation Officer, who proceeded with the case in exercise of the powers conferred by rule 39 of the Punjab General Sales Tax Rules, 1949, that clarification was sought by Shri B.R. Gupta, from Shri Raghbir Singh in the form of a note and the Assessing Authority had, therefore, not passed any new order and his original order dated October 30, 1968, remained as it was, that no written application for adjournment had been submitted and that best judgment assessment was the only remedy available in view of the non production of the account books by the petitioner. On the merits of the controversy, it was stated that entry 72 in Schedule ''B'' clearly exempts only "Tandurs" and "Dhabas" as distinct from restaurants, and the petitioner was, therefore, not exempt from payment of tax as the petitioner was running a restaurant and not a Dhaba. In paragraph 12 of the written statement an objection has been taken to the effect that presentation of this petition without waiting for the order of the Sales Tax Tribunal on the petition u/s 22 of the Act for reference to this Court is improper. That point has again been pressed as a preliminary objection by Shri Naubat Singh at the hearing of this petition. Reliance has been placed in support of this objection on the judgment of their Lordships of the Supreme Court in Bhopal Sugar Industries Ltd., Madhya Pradesh v. D.P. Dube, Sales Tax Officer, Bhopal Region, Bhopal (1963) 4 STC 410.

In that case it was held as below: The jurisdiction of the High Court under Article 226 is extensive, but normally the High Court does not exercise that jurisdiction by entertaining petitions against the order of taxing authorities, when the statute under which tax is sought to be levied provides a remedy by way of appeal or other proceeding to a party aggrieved, and thereby by-pass the statutory machinery. The High Court has jurisdiction to decide whether a statute under which a tax is sought to be levied is within the legislative competence of the Legislature enacting it or whether the statute defies constitutional restrictions or infringes any fundamental rights, or whether the taxing authority has arrogated to himself power which he does not possess, or has committed a serious error of procedure which has affected the validity of his conclusion or even where the taxing authority threatens to recover tax on an interpretation of the statute which is erroneous. The High Court may also in appropriate cases determine the eligibility to tax of transactions the nature of which is admitted, but the High Court normally does not proceed to ascertain the nature of a transaction which is alleged to be taxable. The High Court leaves it to the taxpayer to obtain an adjudication from the taxing authorities in the first instance.

In the present case the petitioner has admittedly exhausted his remedies by way of all appeals provided under the Act right up to the appeal to the Sales Tax Tribunal. In the proceedings u/s 22 of the Act for making a reference no adjudication has to be made on the merits of the controversy between the parties either on questions of law or on questions of fact. The object of getting a reference made to this Court is to have an adjudication on the pure question of law that arises in a case, which may either be referred by the Sales Tax Tribunal or on which a reference may be called by this Court. That by itself cannot be held to be an adequate alternative remedy to the impugning of an order of the Sales Tax Appellate Tribunal in every case. In the Division Bench judgment of this Court in Vidya Parhash and others v. The Punjab State 1952 35 TC 441 certain writ petitions were dismissed without going into the merits of the controversy because the writ petitioners had invoked the extraordinary jurisdiction of the High Court under Article 226 of the Constitution, without preferring any appeal etc. provided under the East Punjab General Sales Tax Act, 1948. It was in that connection that it was held that as under the Sales Tax Act there was provision not only for appeal and revision, bat also for statement of the case to the High Court, the applicants had to seek their remedy under the Act and could not invoke the extraordinary jurisdiction of the High Court under Article 226 of the Constitution of India. It was not a case like the present one where the only remedy available to the petitioners which has not been exhausted is the reference u/s 22. Mr. S.K. Jain has on the other hand referred to three judgments in support of the proposition that this petition is not barred on account of the availability of the alternative remedy in question.

The first case is the judgment of the Supreme Court in Coffee Board, Bangalore v. Joint Commercial Tax Officer Madras (1970) 25 STC 528. The Supreme Court was dealing in that case with a petition under Article 32 of the Constitution. In that connection it was held that the demand of a tax not backed by a valid law is a threat to property and thus gives rise to a right to move the Supreme Court under Article 32 and that a petitioner in such circumstances is not compelled to wait and go through the lengthy procedure of appeals, references, etc. That judgment of the Supreme Court is, in my opinion, not relevant to the point in issue before me. The right of a citizen to move the Supreme Court under Article 32 is itself a fundamental right and it is not open to the Supreme Court to refuse to entertain a petition in which violation of a fundamental right is made out. The right to move the High Court under Article 226 of the Constitution is not fundamental. It is well settled that the jurisdiction of the High Court is discretionary.

The second case placed before me by Mr. S.K. Jain, is the decision of the Supreme Court in Behari Lal Shyamsunder v. Sales Tax Officer, Cuttack (1966) 17 STC 508, wherein it was held that the High Court should not dismiss a petition under Article 226 of the Constitution (filed to have an assessment order quashed on the ground that the imposition of Sales-tax was without authority of law or ultra vires the Sales Tax Act and the Rules) on the ground that the petitioner should exhaust his internal remedies under the Act since the authorities constituted under the Act could not decide such a question. The proposition of law laid down by the Supreme Court in the case of Behari Lal Shyamsunder (supra) enjoins on the High Court a duty to see in each particular case whether the particular order of the authority under the Sales Tax Act is impugned on the ground that it has been passed without the authority of law or is ultra vires the Act, or unconstitutional, or if the attack is not so fundamental but is confined to the peculiar facts of the case. In a writ petition where questions of jurisdiction or want of authority of law are raised and pressed, or an assessment is sought to be shown as ultra vires the taxation Act itself, the High Court would not normally dismiss the petition on the ground that the petitioner has not exhausted the alternative remedy by way of appeal, etc., available to him. In ordinary cases where the order of assessing authority is impugned on account of some error of law apparent on its face or on other such peculiar ground, the High Court would be justified in refusing to travel into the merits of the controversy till the assessee has obtained the adjudication of the departmental authorities on the merits of the dispute. A Division Bench of this Court (D.K. Mahajan and A.D. Koshal, JJ.) in Maman Chand Kundan Lal v. The State of Haryana (1970) 25 STC 458, repelled an objection of this type on the ground that when a person engaged in trade is sought to be taxed without the authority of law, one of his fundamental rights is infringed and he is entitled to knock at the door of this Court to invoke its extraordinary jurisdiction under Article 226 of the Constitution. Three previously given Single Bench decisions to the contrary were overruled by the Division Bench. Some of the points which have been raised by Mr. Jain in this case and pressed before me at the hearing of the petition relate to the jurisdiction of the Assessing Authority to levy the tax at all on the petitioner and go to the root of matter. The petitioner has already obtained the adjudication from the original and appellate taxing Authorities. As I proceed to deal with the contentions raised by Mr. Jain on merits, it would become apparent that this is not a case where the High Court should refuse to go into the merits of the controversy simply because the petitioner''s application for a reference is pending with the Sales Tax Tribunal and there is the possibility of a reference being made on some of the points on which arguments are sought to be advanced before me. On the peculiar facts of this case, therefore, I have no hesitation in repelling the preliminary objection raised by the Learned Counsel for the State.

Before going into the merits of the controversy, I may also dispose of a preliminary objection raised by Mr. S.K. Jain to the admissibility of the written statement filed by the respondents in this case. He has taken objection to its verification on the ground that the contents of paragraphs 1 to 15 having been verified to be correct and true to the knowledge of the deponent "based on information", the source of information should have been disclosed. In support of this proposition reliance has been placed by him on certain observations made in the judgment of the Supreme Court in The State of Bombay Vs. Purushottam Jog Naik, on the decision of this Court in Bhupinder Singh Vs. State of Haryana and Others, , as well as on the decision of a Full Bench of the Patna High Court in Dipendra Nath Sarkar Vs. State of Bihar and Others, am unable to find any force in the objection of Mr. Jain as the Excise and Taxation Officer has clearly stated in the verification of his affidavit that the information in question has been derived by him from the office record available in the case. The source of information of the deposing officer is, therefore, the official record of this particular case. This, in my opinion, is sufficient compliance with the requirements of law and the deposing officer was not bound to give any further details of the particular Official record of this case from which he deprived any particular information.

On the merits, Mr. Jain has firstly contended that the impugned orders are based on confidential inquiries made behind the back of the petitioner, and are, therefore, liable to be annulled on the authority of the judgment of the Supreme Court in Raghubar Mandal Harihar Mandal v. The State of Bihar (1957) 8 STC 770. At page 779 of that report it has been held that if an income tax Officer proposes to make an assessment in disregard of the evidence oral or documentary led by the assessee, he should in fairness disclose to the assessee the material on which he is going to found that estimate. In that connection it was observed that an income tax Officer is not debarred from relying on private sources of information, which sources he may not even disclose to the assessee at all, but in a case where he proposes to use the result of any private enquiries against an assessee, he must communicate to the assessee the substance of the information so proposed to be utilised to such an extent as to put the assessee in possession of the full particulars of the case he is expected to meet and the officer should further give the assessee sample opportunity to meet such information, if possible. The proposition of law laid down by the Supreme Court is indeed well-settled by now. In the instant case, however, the impugned orders are not based on any material collected behind the back of the petitioner of which the petitioner may not have been apprised, or the correctness of which might have been disputed by the petitioner. The impugned orders are mostly based on the statements of Madan Lal of the petitioner concern and on the observations made by the Assessing Authority or the subordinates of the Assessing Authority at the spot in the presence of the petitioner. The only private information which is not based on the statement of Madan Lal and to which Mr. Jain has taken except on relates to the estimate of daily sales at the petitioner''s business concern to which reference has been made in the ex-parte order of the Assessing Authority, dated October 30, 1968 (Annexure ''G''). So far as the working out of the approximate daily sales of the petitioner is concerned, the estimate contained in Annexure ''G'' is irrelevant as final estimate was further reduced by the Appellate Authority on September 29, 1969, and that was not based on any private enquiries. Moreover, the estimate of sales was based on what was observed at the eating house on various occasions. The statement of Dyal Chand (Annexure R./1, to the written statement) shows that the Assistant Excise and Taxation Officer and a Tax Inspector inspected the ''Dhaba'' at about 8.15 P.M. on May 1, 1968, and kept sitting there up-to 9 P.M. The excise authorities also counted the cash and took the statement of Dyal Chand in respect of that matter. Estimates of daily sales were also given by Madan Lal himself. In his statement, dated December 16, 1968 (Annexure ''L'' corresponding to Annexure R/2), Madan Lal himself gave a list of the vegetarian and non-vegetarian dishes prepared and sold by the petitioner with the price of one plate of each of those preparations. It was from that material collected by the assessing authorities in the presence of the petitioner and from the petitioner himself that the assessing authorities formed an estimate of the daily sales of the petitioner. The petitioner having withheld his accounts on the allegation that he did not maintain any accounts at all left no other choice with the assessing authorities. In these circumstances I hold that the impugned orders are not based on any material collected at any private ex-parte inquiry of which the petitioner may not have been made aware. The earlier private inquiries were conducted merely with a view to find out whether a case for issuing a notice in the prescribed form S.T. XIV had been made out or not. The petitioner had no right to be associated with those inquiries.

Objection was then taken to the notice, dated April 4, 1968, in form S.T. XIV (Annexure ''B''), on the ground that it had not called upon the petitioner to show cause why the sales of the petitioner should not be taxed on the ground that what he was running was in fact a restaurant and not a Dhaba. The notice stated that according to the information received by the Assessing Authority, the petitioner was liable to pay tax under the Act and it was necessary to make an assessment u/s 11(6) of the Act. The notice was issued on the assumption that the petitioner was running a restaurant and not a Dhaba. The charging section in the Act brings all sales within its purview except those which may be covered u/s 6. Since the sales-tax is sought to be levied or assessed on a seller, the burden lies on him to show that his case falls under one of the statutory exceptions, and, therefore, he is not liable to be assessed under the Act. It was, therefore, not necessary to give any separate or specific notice to the petitioner to prove that the eating house in question was such a place as fell within the exception contained in entry 72 of Schedule ''B'' to the Act. Nor has the omission of service of any such notice prejudiced the petitioner in the instant case. The record of the case shows that he was fully aware of the legal position and he definitely took up a stand before the assessing authorities to the effect that his was a Dhaba and, therefore, his sales were not liable to tax under the Act. That matter was gone into at length, and no grievance can, therefore, be male of the fact that a specific notice on that point was not served on the petitioner.

Mr. Jain next submitted that service of notice on Dyal Chand was no service in the eye of law as Dyal Chand was nether a servant nor a partner of the Deluxe Dhaba. My attention has in this connection been invited to rule 66 of the Punjab General Sates Tax Rules, 1919, as applicable to Haryana. Rule 66 states that notice under the Act of under the Rules is to be served by one of the methods provided in that rule. Method (a) is in the following words:-

By delivery by hand of a copy of the notice to the addressee of to any other agent duly authorised in this behalf by him or to a person regularly employed by him in connection with the business in respect of which he is required as a dealer, or to any adult male member of his family residing with the dealer.

Mr. Naubat Singh, the learned State counsel, has contended that Dyal Chand on whom the notice was served was "a person regularly employed" by the petitioner in connection with the business of the Deluxe Dhaba. It is significant that this question was neither raised before the Assessing Authority nor before the Deputy Excise and Taxation Commissioner, but was sought to be raised for the first time before the Sales Tax Tribunal. The Tribunal did not allow this question to be raised on the ground that it had not been urged before the lower authorities. Whether Dyal Chand was or was not a person regularly employed by the petitioner in connection with his business is a pure question of fact. Nor does this matter affect the jurisdiction of the assessing authorities. This kind of question should not normally be allowed to be raised for the first time in a writ petition. On the facts of this case, however, it appears to me that on the admissions made by Madan Lal himself, Dyal Chand was a person regularly employed in connection with the business of the the Deluxe Dhaba. In his statement before the Assessing Authority, Madan Lal stated on December 16, 1968, that Dyal Chand was his brother-in-law, who had left the army two years previously and had been helping at the business of the petitioner only for one year prior to December 16, 1968. He added that Dyal Chand was neither partner nor a a proprietor of the concern. Even if the statement of Madan Lal is taken at its face value, it is clear that Dyal Chand had retired from the army and had been doing no other business, that for one year after his retirement he had been living at Jullundur, that for one year prior to December 16, 1968, he had came away from Jullundur, and was working at Ambala and the only work which Dyal Chand had been doing for at least one year prior to the relevant date was that of helping the business of the petitioner. It is not necessary for a person to get a salary as a condition precedent for being ''employed'' by another person. One may be employed free or employed for remuneration or may even be employed in consideration of natural love and affection. According to the ordinary dictionary meaning of the word ''employ,'' it merely means "to occupy the time or attention of to give work to" and the word ''employed'' means "having employment". The facts disclosed by Madan Lal himself show that he had given the work of looking after the Dhaba to Dyal Chand as a relative, and that the time of Dyal Chand was being occupied and his attention was being given to the looking after of the Dhaba for at least one year prior to December 16, 1968. It is not either alleged or shown that Dyal Chand stopped working at the Dhaba after December 16, 1968. The only other question is whether Dyal Chand was regularly employed or not Though Dyal Chand has stated in his affidavit attached to the replication that he was looking after the establishment of the Deluxe Dhaba as a relative during the absence of Madan Lal, who was away from Ambala the alleged transitory nature of his employment referred to in his affidavit loses all significance in the face of the statement of Madan Lal himself to which reference has been made above. In this situation it is held that the service of notice on Dyal Chand was in accordance with rule 66, and was, therefore, good service on the petitioner.

In view of this finding it is not necessary to deal with the ancillary argument of Mr. S.K. Jain based on the judgment of the Andhra Pradesh High Court in the State of Andhra Pradesh v. Pachipulusu Venkata Subbn Rao and Co (1970) 26 STC 27 to the effect that an assessment order passed without due service of notice on the dealer is illegal and ineffective. In that case it was no doubt held that the issue of notice was improper and the service was also not in accordance with the law, and, therefore, the proceedings conducted in pursuance of that notice stood vitiated. Nor is it necessary in view of the finding recorded above to deal with the argument of Mr. Naubat Singh based on the judgment of the Andhra Pradesh High Court in Kondapalli Viraraju v. State of Andhra (1958) 9 STC 42, to the effect that in the absence of proof of prejudice having been caused by the non-service of notice, the resultant proceedings are not vitiated.

Another objection taken to the validity of notices Annexure ''B'' and Annexure ''K'' is that while serving those notices in Hindi, the words in the prescribed form in English requiring the assessee to produce his evidence, if any, on the date fixed were accidentally omitted, and, therefore, the notices did not satisfy the requirements of law. I do not consider this defect to be fatal in the circumstances of the present case. Notice to show cause against the proposed assessment and to produce the books of accounts, etc impliedly requires the assessee to produce any evidence which he may like to produce in showing such cause. So tar as the notice, dated April 4, 1968 (Annexure ''B''), is concerned, the petitioner did not put in appearance in response to it at all and never made any request for opportunity to produce any evidence. So far as the second notice (Annexure ''K''). dated December 4, 1968, is concerned, it was served on Mandan Lal and he appeared in pursuance of it and made the statement Annexure ''L'' before the Assessing Authority. Though no request for an opportunity being granted to him to produce evidence appears to have been made by him in the course of that statement, it is not disputed that an oral request for that purpose was made by him on the same day, but the request was refused. Reference to that request is contained in some order passed by the Assessing Authority on December 16, 1968, in the following words:-

The dealer wants time for assessment, but there is no plausible ground for it.

The word "assessment" in the abovementioned order has been taken from the return tiled by the respondents in this case. In the course of the order of the Sales tax Tribunal that word was referred to as ''illegible''. Be that as it may, the fact remains that the petitioner did not make any application for calling any particular evidence and did not even disclose what evidence he wanted to produce and for what purpose. At least he does not appear to have staled that he wanted to produce any evidence to prove that his was a Dhaba and not a restaurant. Nor did he make any effort to produce any evidence before the Deputy Excise and Taxation Commissioner, who could also record evidence if any was offered by the petitioner. The mere non-mentioning of the requirement to produce evidence, if desired, by the petitioner in the notices in the prescribed form has not, in my opinion, caused any prejudice to the petitioner in this case.

The next argument of Mr. S.K. Jain is that the ex-parte order dated October 30, 1968 (Annexure ''G''), determining the liability of the petitioner for assessment under the Act, does not contain any clear finding about the petitioner being not exempt under entry 72 and being a hotel or a restaurant and not being a Dhaba, and this question was for the first time decided ex-parte by the Excise and Taxation Officer in his order Annexure ''J'' dated December 2, 1968, in response to an enquiry made from him by the Assistant Excise and Taxation Officer. It no doubt appears to be correct that the order Annexure ''G'' was based on the assumption that the petitioner was a restaurant and not a Dhaba and no clear finding on that issue was recorded therein. It is also correct that on a reference from the Assistant Excise and Taxation Officer (Annexure ''H''), the Excise and Taxation Officer reported vide Annexure ''J'' that Messrs Deluxe Dhaba "is definitely a restaurant and not a Dhaba'' and had to be assessed as a restaurant. Mr. Naubat Singh has explained that Annexure ''J'' is not a judicial or a quasi-judicial order, but a mere administrative report which does not bind the petitioner. According to the learned State counsel, this was the clarification by the Excise and Taxation Officer in response to the enquiry made by the Assistant Excise and Taxation Officer and it was after this clarification that the Assistant Excise and Taxation Officer recorded the statement of Madan Lal wherein he claimed that the petitioner concern was (sic) Dhaba and not a hotel or a restaurant, and thereupon the said Assessing Authority went into this matter in detail and decided the issue against the petitioner in order Annexure ''M'' which is the first order of assessment. The question whether the petitioner concern was a restaurant or a Dhaba had to be decided only if and after the issue was raised by the petitioner. To whatever extent the authorities might have devoted their mind to this issue suo motu on any earlier occasion is not relevant. The petitioner claimed his concern to be a Dhaba for the first time in his statement, dated December 16, 1968. Petitioner was a party to the order Annexure ''M''. The Assessing Authority considered all the pros and cons of the matter and came to a decision to which reference will be made in due course. It cannot, therefore, be said that the assessing authorities passed the impugned orders of assessment without determining whether the petitioner concern was or was not a Dhaba. Nor can it be said that the said issue was decided ex-parte.

Mr. Jain further contended that the determination of liability to assessment and the actual assessment could rot in law be bifurcated and that the adopting of a procedure whereby the two enquiries were made separately and adjudicated upon separately vitiated the entire proceed-dings. Reliance was in this connection placed on the provision of sub-section (6) of section 11 of the Act. I am unable to find anything in that provision or in any other provision of the Act which prohibits piceemeal decision on the two aspects of the case, namely (i) the basic question of eligibility to tax; and (ii) the actual assessment of the tax due under the Act after determining the question of liability.

The next submission of the Learned Counsel for the petitioner is that there is no provision in the Act to make the liability to pay sales-tax retrospective. While giving a narrative of the facts leading to the filing of the petition, I have already stated that the Assessing Authority had made the petitioner liable to pay tax on sales effected after July 1, 1966 but the Appellate Authority has subsequently held that the liability the petitioner commences from August 10, 1966. The difference between the two dates is based on the quantum of daily sales worked out by the authorities. The period for which the tax was to be assessed was the financial year 1966-67 i.e., the period commencing April 1, 1966, and ending March 31, 1967. The period during which the total sales did not reach Rs. 25,000/- was taken out firstly on the basis of Rs. 300/- per day, and subsequently on the basis of Rs. 200/- per day. That accounts for the difference in the date from which the tax was to be levied on the sales made by the petitioner. Section 5 states that the tax has to be levied on the taxable turnover of a dealer. Section 4 prescribes the incidence of taxation. Clause (bb) of sub-section (5) of section 4 states that the taxable quantum in relation to any dealer, who runs a Dhaba or a restaurant etc. shall be Rs. 25,000/-. It cannot, therefore, be said that any tax was levied on the petitioner with retrospective effect. Out of the period of twelve months forming part of the financial year 1966-67, so much of the period had to be excluded during which the taxable quantum had not been reached on the basis of the turnover of the petitioner. Counsel has not been able to show in what other manner he considers the assessment to be with retrospective effect. The tax was levied in respect of only such period for which it could be levied u/s 11-A(1) of the Act.

The next proposition canvassed by Mr. Jain is indeed ingenious. He has stated that cooked food, cooked meals and cooked fish cannot be subjected to payment of sales-tax as they fall within the exemption to the liability to tax under Schedule ''B'' to the Act. Section 4 is the charging section. Sub-Section (1) of that Section states that any dealer whose gross turnover during the year immediately preceding the commencement of the Act exceeded the taxable quantum shall be liable to pay tax on all sales affected after the coming into force of the Act. Sub-section (2) of section 4 provides that every dealer to whom subsection (1) does not apply shall be liable to pay tax on the expiry of thirty days after the date on which his gross turnover during any year first exceeds the taxable quantum. It is under this provision (section 4 (2)) that the petitioner has been taxed. Section 5 prescribes the rate of tax. Section 6 says that no tax shall be payable on the sale of goods specified in the first column of Schedule ''B'' subject to the conditions and exceptions, if any, set out in the corresponding entry in the second column thereof. Sub-section (2) of section 6 authorises the State Government to add or delete any entry to ''or from Schedule ''B'' Entries 16 and 18 in Schedule ''B'' read as follows:

16.

Vegetables

...

Except when sold in tins, bottles or cartons.

18.

Meat, fish and eggs.

...

Except when sold in tins bottles or cartons.

Entry 72 with which we are directly concerned is in the following terms:-

72.

Indian food preparations ordinarily prepared by Tandoorwalas, and Dhabawalas.

When sold by the persons running Tandoors, Dhabas exclusively.

The argument of Mr. Jain is that vegetables, meat, fish and eggs do not cease to be what they are merely became they are cooked and become food preparations. In support of this proposition he has relied on the judgment of the Supreme Court in Tungabhadra Industries Ltd. Vs. The Commercial Tax Officer, Kurnool, wherein it was held that when raw groundnut oil is converted into refined oil and when subsequently in the course of hydrogenation, the oil absorbs two atoms of hydrogen and there is an inter-molecular change in the content of the substance, the hydrogenated oil still continues to be groundnut oil notwithstanding the processing which is merely for the purpose of rendering the oil more stable thus improving its keeping qualities for those who desire to consume groundnut oil. It was observed that there is no use to which the groundnut oil can be put for which the hydrogenated oil could not be used. Nor is there any use to which hydrogenated oil could be put for which the raw oil could not be used. Counsel then referred to the judgment of the Gujarat High Court in B. Dar Laboratories v. The State of Gujarat (1968) 22 STC 160. In that case it was decided that the article sold by the assessee completely retained its essential character as snuff and had only certain flavouring agents, preservative and water added to it to change its physical condition in order to make it more acceptable to the customers who used it for application to the gums. It was held that such converted article continued to be the original stuff and was, therefore, exempt from sales-tax by virtue of entry 49 in Schedule ''A'' to the Bombay Sales Tax Act, 1959. It was observed by the Division Bench of the Gujarat High Court that when a process is adopted for convenience of sale or making the article more acceptable to the customers, if the article in question retains its essential character, it has to be taxed as such article only and the processing will make no difference.

The next case to which Mr. Jain referred is the judgment of the Mysore High Court in M.L. Abdul Malik and Company v. Commercial Tax Officer, 2nd Circle, Basangudi, Bangalore (1963) 14 STC 214. It was held that sugar mentioned in section 8(2) of the Mysore Sales Tax Act, 1957 included sugar candy though sugar candy was separately dealt with under item 31-B of the Fifth Schedule to that Act. On that basis it was decided that the sugar candy on which excise duty had been paid could not be subjected to sales tax under the provisions of the Mysore Sales Tax Act. 1957,

The last case on which Mr. Jain relied in connection with this proposition is the judgment of the Supreme Court in the State of Madhya Bharat and others v. Hira Lal (1966) 17 STC 313. It was held in that case that Hiralal was entitled to exemption from sales-tax under item 39 of the State Government notification, dated October 24, 1953, on the ground that scrap iron re-rolled to give it an attractive and acceptable form did not in the process of re-rolling lose its original character as iron and steel. It was held that bars, flats and plates sold by Hiralal continued to remain iron and steel which are exempted under the relevant notification. On the other hand Mr. Naubat Singh referred to the judgment of the Supreme Court in the State of Madras v. Bell Mark Tobacco Company (1967) 19 STC 129, wherein it was held that the chewing tobacco was different from raw tobacco for the purposes of the Madras General Sales Tax Act (9 of 1939), and the Madras General Sales Tax (Turnover and Assessment) Rules, 1939. Bell Mark Tobacco Company, who were the dealers in tobacco and tobacco products, had been assessed to sales-tax on the turnover from the sales of chewing tobacCompany After a somewhat complicated process and sprinkling of jaggery juice on the tobacco and cutting it into strips by shearing machines and allowing those strips to be dried, the same were packed in special wrappers and these packets were knows as chewing tobacco packets. The process was carried on by a large number of workmen. It was held that the various processes to which the raw tobacco was subjected amounted to a manufacturing process, and, therefore, the chewing tobacco sold by the assessee was not the same commodity as raw tobacco, but was a manufactured product from the raw tobacCompany A Division Bench of the Gujarat High Court (J.M. Shelat, C.J. and P.N. Bhagwati, J.) held in C. Gokaldas & Co and others v. The State of Gujarat (1966) 17 STC 138, that when raw tobacco is converted into bidi pattis by subjecting it to the process of sieving and removal of stones and dust, what is produced is a commercially different article, and therefore, the assessees could not be said to have sold raw tobacco purchased by them on which they had paid purchase tax when they sold bidi pattis made out of such raw tobacCompany Similarly in Badri Prasad Prabha Shankar and another v. Sales Tax Commissioner, U.P. Lucknow (1963) 14 STC 208, it was held (i) that the question whether crushed and sieved tobacco is a commercially different article from tobacco leaves is essentially a question of fact; and (ii) that where there is a finding by the Judge that crushed and sieved tobacco is commercially a different article, crushing and sieving of tobacco must be held to be a manufacturing process. On that basis it was decided that the crushed and sieved tobacco is not exempt from taxation under item 9 of the notification, dated June 7, 1948, issued under the U.P. Sales Tax Act (15 of 1948).

Reference was then made to two cases reported in (1961)12 STC. The first is the judgment of a learned Single Judge of this Court in Green Hotel and Restaurant v. Assessing Authority, Patiala, and others, reported at page 603 of the above mentioned report. Entry 49 in Schedule ''B'' to the Act which was the verbatim copy of the present entry 72 came up for consideration in that case is connection with an order of the Assessing Authority in which it had been held that the Green Hotel and Restaurant did not fall within the exemptions contained in the relevant entry. It was held that these are matters which can be proved only by examining evidence, and are, therefore, pure quetions of fact. The second case reported at page 286 is the decision of the Supreme Court in Ramavatar Budhaiprasad v. The Assistant Sales Tax Officer, Akola and others. In that case it was held that the word "vegetables in item 6 of Schedule II of the C.P. and Berar Sales Tax Act, 1947, must be construed not in any technical sense nor from the botanical point of view, but as understood in common parlance. The question which fell for determination before the Supreme Court was whether betel leaves could be exempted from sales-tax on the ground that those were called vegetables. The question was answered in the negative.

In this state of law it is to be decided whether Indian food preparations which are ordinarily prepared by tandoorwalas and dhabawalas, etc. do or do not fall within the exemptions contained in entries 16 and 18 if those preparations are made from vegetables, meat or fish. Mr. Jain laid emphasis on the fact that while circumscribing the limits of the articles known as vegetables, meat, fish and eggs, by the words contained in column 2 against those entries so as to exclude from exemption vegetables, meat, fish and eggs which are sold in tins, bottles or cartons, the State Government has not excluded from the scope of the description of vegetables, meat, fish and eggs, cooked vegetables, cooked meat, cooked fish and cooked eggs. Mr. Jain his vehemently contended that if the State Government intended to take cooked vegetables etc. out of the scope of the relevant exemptions, the words "cooked or" would also have been added after the expression "except when" in column 2 and the entry in column 2 would then have read "except when cooked or sold in tins, bottles or cartons." The question raised by Mr. Jain would indeed have been fairly arguable if entry 72 in Schedule ''B'' had not existed therein. The exemption of certain specified kinds of Indian Food preparations subject to the further restrictions contained in column 2 against entry 72 shows that other Indian food preparation (not covered by entry 72) are not exempt from sales-tax unless they fall under any other specific entry. The question that, therefore, calls for determination is whether preparations of food from vegetables, meat, fish and eggs can be called vegetables, meat, fish an eggs respectively. According to the observations of the Supreme Court in Ramavatar Budhaiprasad''s case (supra) the word "vegetables" in the Schedule of exemptions to the Sales-tax Act has to be construed not in any technical sense, nor from the botanical point of view, but as understood in common parlance. To test the validity of the argument of Mr. Jain, a ready illustration may be seen. Will a person who is asked to bring cauliflower vegetable from the market be understood to have complied with the order if he were to bring cooked cauliflower? I think to ask that question is to answer it. Vegetable ceases to retain its original character when it is cooked in the Indian way into an eatable foodstuff. The degree to which change takes place may vary from vegetable to vegetable and according to the process of cooking. The fact remains that the change which a vegetable undergoes before it becomes a cocked stuff is so significant as to create a definite distinction between the two articles in the common parlance. If the process is adopted merely for the convenience of sale or making the article more acceptable to the customers and the article otherwise retains its essential character, no change may be said to have taken place for the purposes of exemption from sales-tax, but can it be said that the process of cooking a vegetable or meat or fish is adopted for convenience of sale or for making the article more acceptable to the customers? Cooked vegetable, cooked meat or cooked fish is really more inconvenient for sale than raw vegetables, raw meat or raw fish. The class of customers who have to buy, raw vegetables, etc. on the one hand, and cooked vegetable etc. on the other is entirely different. Raw vegetables, raw meat, or raw fish has the characteristic of being converted into different kind of cooked food. That essential characteristic in these things is lost when these have already been cooked in a particular pattern. Cooked vegetables, meat and fish are commercially different articles than raw vegetables, meat or fish. Cooked vegetables, meat, fish etc. do not retain the essential characteristic of raw vegetables, meat, fish etc. respectively. These do not remain in that condition and the object of conversion is not the convenience of sale or making the articles acceptable to the very same customer who goes to a shop to buy raw vegetables, raw meat or raw fish. For the foregoing reasons I would hold that vegetables, meat, fish and eggs after being cooked do not fall within the exemptions contained in entries 16 and 18 as the case may be of Schedule ''B'' to the Act.

This takes me to the last submission of Mr. Jain on arguing which substantial time was taken by both sides. This relates to the question whether on the evidence on the record of this case, the petitioner concern can or cannot be said to be running a Dhaba exclusively, and whether the Indian food preparations sold by the petitioner are such which are ordinarily prepared by tandoorwalas, dhabawalas or lohwalas. The claim of the petitioner for being exempted from the levy of sales-tax depends on the question whether this case does or does not fall squarely within entry 72 of Schedule ''B'' to the act which has already been quoted verbatim. The following conditions precedent must be satisfied before a sale falls within entry 72:-

(i) The article sold must be an "Indian food preparation";

(ii) the Indian food preparation must be such which is ordinarily prepared by a tandoorwala or a dhabawala (and should not be such a sophisticated Indian food preparation which is not prepared by an ordinary tandoorwala or a dhabawala); and

(iii) The Indian food preparation of the type referred to above would be exempt from the levy of sales-tax only if it is sold by a person who is running exclusively a tandoor or a dhaba (and not doing any other business at that shop).

The above analysis of entry 72 reveals that the test for determining whether a particular sale does or does not fall within entry 72 is two fold; namely the kind of food preparations sold and the nature of the business of the person who has effected the sale. The findings of fact recorded by the sales-tax authorities based on the statements of the petitioner himself are that the sales which are brought to tax are of (i) meat, (ii) chicken, (iii) Salad, (iv) Kailaiji, (v) Gurda Kapura (vi) Matter Paneer ard (vii) Alu Mattar. I am leaving out of consideration the other meat and vegetable dishes to which reference has been made in Annexure ''G'' on the basis of local enquiries, as the liability of the petitioner to pay tax has been determined only on the basis of the abovementioned seven food preparations. A glance at the list of preparations given above shows that they are all Indian food preparations. Whether these are the kind of preparations which are ordinarily made by tandoorwalas or dhabawalas is a question of fact on which the finding of the sales-tax authorities cannot be disturbed by me unless the same is found to be absolutely baseless. It is well-known that these food preparations are ordinarily available at restaurants and also in hotels, though some of the preparations like Alu Mattar and simple meat are no doubt prepared by some dhabawalas also. This part of the case has in fact rot been disputed by the petitioner either before the assessing authorities or even before me. The only question on which there has been controversy before the sales-tax authorities in this connection is whether the petitioner is or is not running a dhaba exclusively. This takes me to the question of the difference between a dhaba on the one hand and a restaurant on the other.

The word ''dhaba'' has been imported into the Hindustani from Hindi. In Hindustani it has acquired a secondary meaning which is not directly relevant for cur purposes, though it also gives an indication of the type of accommodation called ''dhaba''. At page 569 of J.T. Piatt''s Hindustani to English Dictionary ''daba'' (from Hindi) is stated to mean "the eaves of a house three or four feet beyond the wall so that people may sit under them." In the "Hindi-Punjabi Kosh" (dictionary giving meanings in Punjabi of Hindi words) published by the Punjabi Department of the State Government ''dhaba'' has been stated to mean "Dal, erroneously printed as ''Jal'' in the book) Roti Di Dukan-Barandari". Translated into English, it would mean "shop for sale of pulse and chapati-a room with twelve doors (implying more openings than walls)". These dictionary meanings indicate two things, viz. (i) the kind of superstructure under which a dhaba is expected to be run; and (ii) the kind of food preparations which are usually sold at a dhaba. A dhaba is not expected to be run in a regular shop, but under the projection of a house or in a construction of the type of a covered verandah. It is a matter of common knowledge that what are popularly known as "dhabas" were originally put up in stalls having gunny coverings or made of wood. What is more important is the nature of food stuffs for the sale of which an eating house is known as dhaba. "Restaurant" in its dictionary meaning merely connotes an eating place. In common parlance, however, it has acquired the meaning of a posh eating house. As observed by the Assessing Authority what used to be usually available at a dhaba was pulse, chapaties and water. That is the meaning ascribed to the expression in the Hindi dictionary also.

The sales Tax Tribunal has in its order Annexure ''P'' dated April 22, 1970, slated that some of the features of a tandoor or a dhaba are (i) that the cooking place is usually in the front of the establishment as compared with the cooking place in a restaurant which is usually in the rear portion: (ii) the furniture in the dhaba is very simple as against the sophisticated furniture and cabins etc. provided in a restaurant; (iii) whereas the meals served in a dhaba are of ordinary nature and are charged per chapati, the charges made in a restaurant are per dish; and (iv) whereas only one cooked pulse or vegetable is served free with chapatis in a dhaba, every dish and every chapati is charged for in a restaurant. I am unable to hold that anyone of the criteria adopted by the Tribunal is irrelevant. All the criteria referred to above are indeed relevant. Mr. Jain contended that there are really three tests for determining whether a particular eating house is a dhaba or a restaurant. According to him the owner himself serves in a dhaba, but the owner does not serve in a restaurant where service is rendered by bearers. The second distinction according to Mr. Jain is that the cooking arrangement is not visible to a customer in the case of a restaurant, but the same is visible in the case of a dhaba. The third distinction referred to by counsel is that the bearers are tipped by customers in a restaurant, but there is no tipping in a dhaba. On the basis of these criteria, it has been contended by the Learned Counsel that the petitioner concern should be held to be a dhaba as there is no evidence of tipping there, as there is no evidence of service by bearers, and as the cooking arrangement is admittedly in front of the eating house. I am unable to agree with Mr. Jain in this respect. None of the criteria referred to by the Sales Tax Tribunal and those referred to by Mr. Jain is individually conclusive of the fact whether a particular concern is a restaurant or a dhaba. It is the cumulative effect of all the relevant factors which must lead the sales-tax authorities to a definite conclusion on this pure question of fact. In my opinion, the following are the relevant considerations for determining the issue of this type:-

Firstly, the overall show and get-up of the shop has to be taken into consideration;

Secondly, the arrangement of serving food, i.e., whether the customers are to sit on charpoys, or on benches, or on stools, or in ordinary wooden chairs, or other ordinary furniture in the open or in a covered shed on the one hand: or whether they are provided with separate cabins fitted with electric call-bells, Sunmica top tables and cushioned seats, on the other, is relevant;

Thirdly, the method of service, i.e., whether the vegetables or pulse is put in katoris in a thali in which the chapatis are also heaped and the whole thing is passed on to the customer on the one hand, and service of different dishes in different plates and providing a separate plate for chapatis with spoons, etc., and each chapati or dish in addition being served on order also helps in the decision of the issue;

Fourthly, the kind of utensils in which the food is served, that is whether it is served in nickle-plated or other brass utensils or served in China crockery, or in stainless steel Utensils also deserves consideration;

Fifthly, whether cooking arrangements are in front or in the rear may deserve consideration, but is not of decisive help as most of the modern restaurants these days believe in Barbecue service and have grills displayed to be public on which meat and chicken are roasted and served right under the eyes of the customer. Those restaurants do not become dhabas merely because of the cooking arrangements being visible to the customers;

Sixthly, service by the owner or by the servants does form one of the relevant criteria for determining the issue. Whereas in a dhaba normally the customer collects the food from that seat or counter of dhabawala, food is always served on the individual table of the customer in a restaurant;

Seventhly, the seating capacity of an eating house is also relevant for determining the question in dispute. In a dhaba not more than eight or ten persons are usually found eating at one time. In a restaurant the seating capacity depends on the accommodation and furniture and usually large number of seats are provided;

Eighthly, the quantum of sale itself is not conclusive, but coupled with other things, it may assist in forming an opinion on this point.

In ultimate analysis the question whether a particular place is a dhaba or a tandoor or not is a pure question of fact and this Court would not normally interfere with a finding on such an issue recorded after fair consideration of the relevant material available in a given case.

So far as this particular case is concerned, it appears from the statements of the petitioner himself given before the Assessing Authority, from the observations of the sales-tax authorities male at the spot in the presence of the petitioner and from the statement of Dyal Chand (all taken together) that the petitioner concern has the get-up and show of a restaurant, that the food preparations are not made available to the customers from the counter or from the seat of the proprietor but by servants on tables provided for separate customers, that Sunmica top tables, up to date chairs, separate cabins with electric call-balls are provided for the customers, that food preparations are served in China plates, that the price of the food preparations is charged separately for each plate and each chapati, that there are about five servants at the shop getting Rs. 150/- per mensem, that rent of Rs. 114/- per mensem is being paid for the shop in which the business is run, that about at least 50 to 60 customers visit the shop daily, that there is the modem seating capacity for 53 persons in the shop, that electric fans are fitted for the customers, and the amount of daily sales is substantial. In the face of all this material, the mere fact that the cooking place is provided in front and not in the rear would not, in my opinion, by itself tilt the balance in favour of the petitioner. In this view of the matter, it is clear that the decision of the assessing authorities against the petitioner in this respect is based on material which is relevant and germane to the point in issue, and has been arrive at after a fair and proper consideration of all such material.

There appears to be a further difficulty in the way of the petitioner in this respect. The sales which the petitioner wants to save from tax would be exempt only if the petitioner does not sell anything except the articles mentioned in the first column of entry 72 at the place in question. This is because the word "exclusively"'' is used in the second column of entry 72. It is in evidence in the instant case that besides selling Indian food preparations, the petitioner also sells soft drinks like Coca Cola, biscuits, etc., at his shop. If so, the petitioner is not running a tandoor or a dhaba exclusively. On an overall consideration of all these matters, I am unable to differ with the finding of fact recorded by the sales-tax authorities to the effect that despite the fact that the petitioner calls his concern a dhaba, it is in fact not a dhaba within the meaning of entry 72 of Schedule ''B'' to the Act.

No other point has been argued in this case. The writ petition, therefore, fails and is accordingly dismissed. As the case involves some questions of a novel nature, I leave the parties to bear their own costs.