State of Tamil Nadu vs Ananda Lunch Home and Another

K.M. Natarajan, J.—Since common questions are involved in these two revisions, they were clubbed together by consent of parties and

disposed of by a common order. T.C. No. 188 of 1980 is in respect of levy of assessment for the assessment year 1974-75, while T.R.C. No.

403 of 1980 is in respect of assessment for the assessment year 1977-78. The assessees in both the cases are the proprietors of Ananda Lunch

Home, Namakkal, and Vijaya Cafe Hotel, Dharmapuri, respectively. The common questions in both the revisions are, whether the Tribunal is

justified in admitting additional grounds and entertaining the appeal disputing the entire turnover without following the principles laid down in The

State of Tamil Nadu Vs. Siemens Engineering and Manufacturing Company of India Limited, and secondly, whether the Tribunal without

appreciating the case independently in the light of the facts involved and with reference to the provisions of the Tamil Nadu General Sales Tax Act,

1959, erred in holding that there assessee is entitled to claim exemption on the basis of the decision in Northern India Caterers (India) Ltd. Vs. Lt.

Governor of Delhi, .

As regards the first question, it is concluded by a Full Bench of this Court in the Decision reported in [1989] 74 STC 303 (Tamil Nadu Small

Industries Corporation Limited v. State of Tamil Nadu), to which one of us (K. M. Natarajan, J.) is a party and therein it was held :

The provisions of section 31 of the Tamil Nadu General Sales Tax Act, 1959, and rule 27 of the Tamil Nadu General Sales Tax Rules, 1959, and

form I thereunder do not place any express embargo on the power of the appellate authority to entertain additional grounds with reference to a

particular turnover, over which no dispute was originally raised din the grounds of appeal, but which was raised subsequently. There is always a

discretion in the appellate authority, which, of course, must be exercised in a sound and a judicial manner, to admit or not to admit additional

grounds, taking note of very many relevant factors, including that of limitation, if any. This being our view, we could not approve the regid view of

the Division Bench of this Court in State of Tamil Nadu v. Siemens Engineering and Manufacturing Company of India Limited [1977] 39 STC 285

and the same stands overruled.

As regards the second question, the Tribunal relied on Northern India Caterers (India) Ltd. Vs. Lt. Governor of Delhi, . The said decision was

the subject-matter of review by their Lordships of the Supreme Court in [1980] 45 STC 212, wherein it was held :

...... where food is supplied in an eating-house or restaurant, and it is established upon the facts that the substance of the transaction, evidenced by

its dominant object, is a sale of food and the rendering of services is merely incidental, the transaction would undoubtedly by exigible to sales tax.

In every case it will be for the taxing authority to ascertain the facts when making an assessment under the relevant sales tax law and to determine

upon those facts whether a sale of the food supplies is intended.

Krishna Iyer, J., while concurring with the majority view, in his separate judgment also observed :

The substance of the transaction, the dominant object, the life-style and other telling factors must determine whether the apparent vendor did sell

the goods or only supply a package of services. Was there a right to take away any eatable served, whether it be bad manners to do so or not ? In

the case we have, the decision went on the ground that such right was absent. In cases where such a negative is not made out by the dealer - and

in India, by and large, the practice does not prohibit carrying home - exigibility is not repelled.

In view of the subsequent decision of the Supreme Court reported in [1980] 45 STC 212 [Northern India Caterers (India) Ltd. v. Lt. Governor

of Delhi], the matter requires reconsideration by the assessing authority. The learned counsel for the revision petitioner did not dispute this

proposition; but, would, however, contend that by virtue of section 6(1) of the Constitution (Forty-sixth Amendment) Act, 1982, though the

transaction in the case of the assessee would amount to sale, and notwithstanding any judgment, decree or order of any court, Tribunal or

authority, no law which was passed or made before such commencement and which imposed or authorised the imposition of, or purported to

impose or authorise the imposition of, the aforesaid tax shall be deemed to be invalid or ever to have been invalid on the ground merely that the

legislature or other authority passing or making such law did not have competence to pass or make such law and as such, all, the taxes levied or

collected or purporting to have been levied or collected under any such law before the commencement of this Act shall be deemed always to have

been validly levied or collected in accordance with law. Yet, the Government of Tamil Nadu has not passed any enactment extending the Act to

the said sale and as such the Revenue cannot take advantage of the Forty-sixth amendment to the Constitution. The same has been considered in

the decision reported in Sree Annapoorana v. State of Tamil Nadu [1986] 63 STC 18, wherein a Division Bench of this Court held :

The latter part of clause (1) of section 6 of the Constitution (Forty-sixth Amendment) Act, 1982, only validated the law which was passed or

made before the commencement of the said Act, which imposed or authorised the imposition or purported to impose or authorise the imposition of

a tax on food and drinks supplied in a hotel or restaurant and if the law thus made, though would have been ultra vires on the ground of legislative

competence, the defect or want of competence was removed by the validation provision. But if the law which was in force at the relevant date did

not expressly impose or authorise the imposition of a tax on the supply of food and drinks in a hotel or restaurant, the Constitution (Forty-sixth

Amendment) Act did not amend that law including in it a tax on the sale of food and drinks in a hotel or restaurant. The amendment only expanded

the legislative entry and conferred legislative competence in respect of a matter when the State Legislature was found not competence. The Act did

not have the effect of altering the definition of ''sale'' in the various State legislations. The result of the Act was that if any Stare sales tax law had

included any transaction of words contract, hire-purchase, supply of food and drinks in a hotel or transfer for consideration of controlled

commodities, in the definition of ''sale'' then such a provision though lacked legislative competence at the time when it was enacted, stood validated

by the Constitution (Forty-sixth Amendment) Act so that the levy and collection of tax under these provisions would become legally valid.

It was held in the above quoted case :

In the instant case, during the relevant years the definition of ''sale'' in the Tamil Nadu General Sales Tax Act did not specifically include food and

drinks supplied to customers in hotels and restaurants and hence the turnover relating to the same could not have been taxed either under the

provisions then in force or under the Constitution (Forty-sixth Amendment) Act, 1982.

It was further held that when the proceedings were pending in appeal or revision before the appellate or revisional authorities or pending in

revision in the High Court, for that matter when a writ petition was admitted and rule nisi was issued, it could not be said that the assessments had

become final. It is also held that the question of waiver arose only if the transactions were taxable. The learned counsel submitted that as the

subject-matter of Northern India Caterers (India) Ltd. Vs. Lt. Governor of Delhi, was the subject-matter of review before the Supreme Court in

[1980] 45 STC 212 and the same was pending at the time of the impugned order, and since it had been disposed of, the matter has to be remitted

back to the Appellate Tribunal to dispose of the same in the light of the decision in Northern India Caterers (India) Ltd. Vs. Lt. Governor of Delhi,

. We find much force in the contention of the learned counsel for the revision petitioner in this regard.

For the foregoing reasons, the impugned orders passed in both the cases by the Tribunal are set aside and the matter is remitted back to the

Appellate Tribunal to consider the principle laid down in Northern India Caterers (India) Ltd. Vs. Lt. Governor of Delhi, , with reference to the

facts of each case and dispose of the same on merits accordingly. However, the Appellate Tribunal is also directed to keep in view of the decision

of this Court in Sree Annapoorna and Another Vs. The State of Tamil Nadu and Another, . Both the revisions are ordered accordingly. However,

in the circumstances of the case, there will be no order as to costs.

Ordered accordingly.