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Madhur Jalpan Grih v. Commissioner Of Trade Tax Lko. - SALES/TRADE TAX REVISION No. 89 of 1999  RD-AH 20561 (5 December 2006)
TRADE TAX REVISION NO. 89 of 1999.
TRADE TAX REVISION NO. 92 of 1999.
TRADE TAX REVISION NO. 93 of 1999.
Madhur Jalpan Grih, Bada Dev., Varanasi. Applicant
The Commissioner of Trade Tax, U.P., Lucknow. Opp.Party.
Hon'ble Rajes Kumar, J.
Present three revisions under Section 11 of U.P. Trade Tax Act (hereinafter referred to as "Act") are directed against the order of Tribunal dated 28th July, 1998 relating to the assessment year, 1980-81, 1981-82 and 1982-83.
The applicant was dealing in Sweetmeat, namkin etc and claimed to have restaurant in which there was a sitting facility. It was claimed that Sweetmeat, Namkin etc were sold at the counter of the shop and also provided to the customers who had come to the restaurant to satisfy appetite and hunger. For the assessment years, 1980-81 and 1981-82 turnover disclosed by the applicant were accepted and the turnover for the assessment year 1982-83 was enhanced. Applicant claimed the exemption on the receipt relating to the supply of food stuff inside the restaurant to the customer on the ground that it was in the nature of service and not liable to tax in the light of the decision of the Apex Court in the case of Northern India Caterers Versus Lt. Governor of Delhi reported in 1979 UPTC 826. The assessing authority rejected the claim of the applicant on the ground that at the time of survey dated 7.3.1983, huge rush was found at the counter and at the time of survey dated 25.8.1984, it was found that the rate of all the items were the same for direct sale at the counter and for the supply to the customers, who had eaten inside the restaurant. Assessing authority also found that at the time of survey, applicant told that in case, if the customers desired to take away the goods, same were being packed and the cash memos have been issued. On these facts, assessing authority held that the applicant was involved in selling Sweetmeat, namkin etc and was not involved in rendering the service by providing food stuff to the customers inside the restaurant. Being aggrieved by the impugned order, applicant filed appeals before the Assistant Commissioner (Judicial), who vide order-dated 18.11.1987 allowed all the appeals in part. Appellate authority has partly accepted the claim of the applicant following the decision for the assessment years, 1976-77, 1977-78, 1978-79 and 1979-80. First appellate authority on the basis of the affidavit of the customer held that in case where the eatable items were provided inside the restaurant, the customer had a limited right to eat and the goods have not been transferred to such customer. Being aggrieved by the order of the Assistant Commissioner (Judicial), applicant as well as Commissioner of Trade Tax filed appeals before the Tribunal. Tribunal by the impugned order dismissed the appeals of the applicant and allowed the appeals of the Commissioner of Trade Tax. Tribunal held that the price of the eatable which were sold at the counter and provided to the customer inside the restaurant were the same and the pre-dominant object was to sell the food stuff to the customer and not to provide the service.
Heard learned counsel for the parties.
Learned counsel for the applicant submitted that this Court in the case of Commissioner of Sales Tax Versus Elchico, Allahabad reported in 1982 UPTC 789 on consideration of the decision of the Apex Court in the case of Northern India Caterers Versus Lt. Governor of Delhi (supra) held that the test for determining whether the dominant object was sale or service is whether customer had a right to take away unconsumed portion of the food stuff. In the said case also the argument of the learned Standing Counsel, that the price at the counter sale and the price of the food stuff provided inside the restaurant were the same has not been accepted. He further submitted that the Tribunal has reversed the order of the first appellate authority without adverting to the findings recorded by the first appellate authority, therefore, the order of the Tribunal is arbitrary and without any basis. Learned Standing Counsel relied upon the order of the Tribunal.
Having heard the learned counsel for the parties, I have perused the order of the Tribunal and the authorities below.
Tribunal has reversed the order of the first appellate authority mainly on the ground that the price of the foodstuff sold from the counter and the price of the food stuff provided to the customer inside the restaurant were the same. On this fact, Tribunal held that the dominant object was to sell the foodstuff and not to provide the service. Tribunal has not adverted to the findings recorded by the first appellate authority. First appellate authority on the consideration of the affidavit of the customers had recorded the finding that the customer had a limited right and in the assessment years 1976-77, 1977-78, 1978-79 and 1979-80, the claim of the applicant has been accepted in part. It is settled principle of law that while reversing the order of the authority below, Tribunal ought to have adverted and set aside the findings recorded by the first appellate authority. Perusal of the order of the Tribunal reveals that the findings recorded by the first appellate authority has not been adverted and set aside. In this view of the matter, the order of the Tribunal is vitiated and liable to be set aside.
In the result, revisions are allowed. The order of the Tribunal is set aside and the matter is remanded back to the Tribunal to decide all the appeals afresh after considering the findings recorded by the first appellate authority and the law laid down by this Court referred hereinabove.
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