PRINCE HOTEL Vs. STATE OF ORISSA

JUDGEMENT

(1.) IN this reference under section 24 (1) of the Orissa Sales Tax Act, 1947 (hereinafter referred to as "the Act") statement of case has been made at the instance of the dealer on the following question of law :

(2.) THE dealer is a partnership firm. It has a canteen where different kinds of sweets and tiffins are supplied for payment by the dealer. For the year 1979-80, the dealer was being assessed under section 12 (4) of the Act where its contention was that the dominant object was rendering service and so the transactions are not exigible to tax under the Act. The Sales Tax Officer, however, held that the dominant object was sale of goods and not service. The dealer preferred first appeal where the Assistant Commissioner confirmed the assessment. In second appeal before the Tribunal, reliance was placed on the decision reported in [1978] 42 STC 386 (SC) [northern India Caterers (India) Ltd. v. Lt. Governor of Delhi] and it was submitted that the dominant object was rendering service and not sale of goods. However, the Tribunal accepted the finding of the Assistant Commissioner that the supply of sweets and tiffins and charging of price according to plate system at piece rate indicates that the dominant object is sale and not rendering service. The Tribunal distinguished the decision in S. J. C. No. 238 of 1977 decided on October 6, 1982 (Hindusthan Aeronautics Ltd. v. State of Orissa ). It held that the dominant object of the dealer was sale of food and accordingly, confirmed the assessment.

(3.) THE dominant object of the dealer is an inference on facts of a case to find whether the transaction was sale or service. The finding of the taxing authorities under the Act in that respect would be final. The scope of interference in advisory jurisdiction is limited in respect of a finding of fact and on a question of law only advice is to be given. The writ jurisdiction of this Court is wider to render findings of facts. Accordingly, in this case, there is no scope for interference that dominant object was sale and not service.