State of Karnataka vs Hotel Leela Venture Limited

K. Sreedhar Rao, J.—The respondent/assessee filed returns for the assessment year 2005-06 to August 2009. The sale bills of the assessee disclose the collection of service charges at 10% on the food and beverages supplied to the customers. It is the contention of the assessee before the AO that the service charges at 10% collected is not part of the sale price of the food and beverages, but the same was collected in view of tips, which the customers normally given to the waiters and also 10% would represent the damage caused to the crockeries and other items. Therefore, it was contended that 10% of service charge collected should not be reckoned as sale price of the food and beverages. The AO held that the said amount constitutes the same price. Accordingly, the said amount has been brought under the tax. The Joint Commissioner considered pre-sale expenditure forming part and parcel of the sale price and confirmed the order of the AO. The Appellate Tribunal taken a contra view and held that the said amount collected is a post-sale expenditure and did not constitute part of sale price of food and beverages. The State aggrieved by the order of the Appellate Tribunal has filed these revision petitions. The substantial questions of law have been formulated in the memorandum of revision petitions:

In the facts and circumstances of the case, whether the Tribunal is justified in giving a finding that service charges collected at 10% on food and beverages in the invoices does not form part of sale consideration for supply of food and beverages and is not pre-sale expenditure/pre-sale service charges liable to tax at 12.5% under the Karnataka Value Added Tax Act, 2003?

In the facts and circumstances of the case, whether the Tribunal is justified in holding that the component of service charges separately indicated in the invoice and on which service tax is levied cannot be a subject-matter of taxation as far as KVAT Act, 2003 is concerned?

In the facts and circumstances of the case, whether the Tribunal is right in not applying the law declared in the judgments relied on by the revenue?

The respondent/assessee has produced statement of service charges collected and disbursement of the same to the waiters and appropriation of 50% of amount towards damage to the crockeries and discarded linen etc. The sale bill is also produced. It is the submission of the assessee that the service charges at 10% levied is in respect of food and beverages supplied in the banquet hall and restaurant. The said amount so collected in lieu of tips from the customers and the same was distributed to the waiters. The statement produced before this Court (Hotel Leela Venture Limited, Bangalore v. State of Karnataka 2010(69) Kar. L.J. 453 (Tri.)(DB)) shows that 50% so collected has been distributed to the waiters and 50% has been set off towards breakages and discarded linen. Per contra, the Government Advocate submits that the expression of service charges is misleading one. The customers normally tend to make mistake it as legal tax levied on them. Besides it is submitted that statement of accounts produced now have not been produced before the AO and he had no opportunity to scrutinise the material to assess its veracity. A reading of sale bill would only disclose that the service charges of 10% is uniformally charged on all the customers. The contention of 50% of the charges would be appropriate towards damage to the crockeries is also untenable. If at all any damage is caused to articles, the assessee should issue a separate bill. The bill also does not disclose that the part of service charges is payable towards the tips. The payment of tip is normally optional, but the assessee should not compulsorily enforce on the customers.

On considering the submission made at the Bar, the order of the Appellate Tribunal is set aside and the matter is remanded to the AO for fresh scrutiny as to whether the said amount is part of sale price of the food and beverages sold and whether the assessee would be legally entitled to claim tips on behalf of his serving staff and set off against the damage to the articles.

The Appellate Authority shall also consider whether the amount collected is a disguised collection of Service Tax by misrepresentation from the customers. The Appellate Authority shall make a fresh assessment by affording opportunity to the respondent-assessee in accordance with law.

Accordingly, the revision petitions are allowed.