OBEROI ASSOCIATED HOTELS LIMITED Vs. COMMERCIAL TAX OFFICER

JUDGEMENT

(1.) THESE writ petitions have been filed by several hoteliers which are recognised and classified as three star, four star and five star hotels by the Department of Tourism, Government of India and restaurant owners, challenging the levy of sales tax under the Tamil Nadu General Sales Tax Act, 1959, in respect of supply of food and drinks in their hotels for the assessment years 1980-81 to 1988-89. Some of these writ petitions are filed for writs of declaration, declaring entry No. 150 of the First Schedule to the TNGST Act, while some others are filed for writs of mandamus, forbearing the authorities of the Sales Tax Department from subjecting the turnover relating to supply of food and drinks to tax under entry No. 150 of the First Schedule to the Act and several other writ petitions are filed for writs of mandamus, forbearing the respondents from levying sales tax on such transactions till the State Government passes orders on the representations made for waiver of the sales tax in respect of the assessment years in question. The period of assessment, no doubt, differs from assessee to assessee as also the writ petitions filed by them. But, the legal submissions and basis of challenge, at the time of hearing of these writ petitions are common and identical and consequently are dealt with together.

(2.) THE history of the statutory provisions pertaining to the levy of sales tax in all these cases and the law declared by the Supreme Court of India and this High Court (as also some of the other High Courts) require to be dealt with in some detail to have a better understanding and appreciation of the grievance espoused on behalf of the petitioners and the legal contentions raised by the several learned counsel appearing on either side.

(3.) WHILE so, the Constitution (Forty-sixth) Amendment Act, 1982, was enacted and published in the Gazette of India dated February 3, 1983, providing for among other things, insertion of clause (29-A) to article 366 of the Constitution of India, defining "tax on the sale or purchase of goods" and also validating and exempting certain levy. The relevant portion of clause (29-A) in so far as it concerns the cases before us, is sub-clause (f) which reads as hereunder :