COMMISSIONER OF SALES TAX Vs. MOTILAL MADANLAL

JUDGEMENT

(1.) BY this reference under Section 44 (1) of the M. P. General Sales Tax Act, 1958, the Board of Revenue has referred the following question of law to this Court for its opinion :

(2.) THE material facts giving rise to this reference briefly are as follows :

(3.) IN exercise of the powers conferred by Section 12 of the M. P. General Sales Tax Act, 1958, the State Government issued Notification No. 966-V-ST dated 31st March, 1964, exempting from payment of sales tax as specified in the notification cooked food excluding sweetmeats, cakes, pastries, biscuits, chocolates, toffees, lozenges and peppermint drops when sold by tandurwalas, dhabawalas, lohwalas, khonchawalas and halwais. The learned Member of the Board found on the basis of the material on record that "katcha bhojan" was served in the assessee's establishment and that in addition to the arrangement for sitting on the floor a table was also provided with two or three chairs. The Board further found that merely because on festivals some sweetmeats were served to the customers, it would not make the assessee's establishment a restaurant. It was further found that providing newspapers and a towel for wiping hands after washing would also not convert a dhaba into a restaurant. The Board found that "katcha bhojan" was served to customers in thalis and the sitting arrangement was mainly Indian. It was not found that the assessee was selling sweetmeats. In these circumstances the Board, in our opinion, was justified in holding that the assessee was a dhabawala.