COMMISSIONER OF SALES TAX Vs. DEVI CHAAT BHANDAR

JUDGEMENT

(1.) THIS sales tax reference is concerned with a dealer whose business is the preparation and sale of halwai preparations and chaat, etc. For the period 1972-73, the dealer was assessed by orders dated 31st October, 1974; the chaat preparations were taxed at the rate of five per cent as against the halwai's preparations at two per cent. On appeal to the Appellate Assistant Commissioner, Sales Tax, it was contended that by virtue of the notification dated 16th August, 1962, articles ordinarily prepared by the halwais dealing exclusively in such articles were taxable at the rate of two per cent and chaat was a preparation ordinarily prepared by halwais. The contention was not accepted.

(2.) A revision petition to the Commissioner of Sales Tax also failed. On a second revision, the First Additional District Judge, Delhi, held that the type of preparations made by the dealer showed that he was dealing exclusively in halwai preparations. The assessee was, therefore, held to be a halwai and taxable in respect of all his preparations at the rate of two per cent. The present reference at the instance of the Commissioner of Sales Tax has resulted in the following question being referred to this Court : " (i) Whether, on the facts and in the circumstances of the case, Notification No. F. 4 (34)/61-Fin. (E) dated 16th August, 1962 (annexure B), is applicable to the dealer. (ii) Whether, on the facts and in the circumstances of the case, the learned Additional District Judge was correct in directing that the tax on the taxable turnover of the dealer for the year 1972-73 should be calculated at 2 per cent and not at 5 per cent. "