ANNAPOORNA Vs. STATE OF TAMIL NADU

JUDGEMENT

(1.) THE appellants in the writ appeals are two hoteliers, one known as Sree Annapoorna and the other known as Sree Gowrisankar. All the tax cases have been filed by the department against the orders of the Sales Tax Appellate Tribunal, Coimbatore. THE assessees in these tax cases are the two writ appellants above referred to. THE assessment years relating to these tax cases and the writ appeals are 1973-74, 1974-75 and the period from 1st April, 1975, to 31st May, 1975, in 1975-76. THE appellants in the writ appeals as also the respondents in the tax cases will hereafter be referred to as the assessees.THE assessees are running restaurants in Coimbatore. THEy were supplying food and drinks inside their restaurant premises to the customers providing seating facilities and other facilities like fan, light, music, etc.

(2.) THE Joint Commercial Tax Officer, Coimbatore, assessed these transactions as sales in his orders dated 21st November, 1974, 28th August, 1975, and 7th August, 1975, for the assessment years 1973-74, 1974-75 and the broken period in 1975-76. THE assessees went in appeal in all these cases. THE Appellate Assistant Commissioner applying the decision in Northern India Caterers (India) Ltd. v. Lt. Governor of Delhi 1978 (7) CTR 130, 1978 AIR(SC) 1591, 1978 (42) STC 386, 1978 (4) SCC 36, 1979 (1) SCR 557, 1979 UPTC 826, 1978 TaxLR 2316, 1978 SCC(Tax) 198(SC) held by his orders dated 18th March, 1980, in all these cases that the supply of food and drinks for those customers who consume the eatables inside the premises cannot be held to be sale liable to be taxed under the provisions of the Tamil Nadu General Sales Tax Act, 1959. However, packet or parcel sales effected by the assesses are liable to be taxed. Since the bills issued to the customers did not make any difference between the packet or parcel sales and those cases where the customers consume eatables inside the premises, the Appellate Assistant Commissioner said that the packet or parcel sales can be reasonably fixed at 5 per cent. of the total turnover.

(3.) THESE writ petitions were dismissed at the admission stage on the ground that the waiver in the Government order was subject to the condition that the assessment proceedings were pending, that the condition was reasonable and perfectly valid and even if there was a discrimination between cases which are pending and cases which have become final, the discrimination will have to be upheld on the ground of valid classification. It is against these orders, the writ appeals have been filed. The respondents have also filed a counter-affidavit in the writ appeals.It may be seen from the various orders that the facts in respect of these two assessments are not in dispute.