STATE OF ORISSA Vs. ATHITI BIHAR RESTAURANT

JUDGEMENT

(1.) THE question of law as has been referred to by the learned Sales Tax Tribunal to this court for opinion is as follows :

(2.) THE facts of the case, in short, are that the dealer in the present case is an unregistered dealer and during the relevant period he was running a restaurant. The assessing officer and both the first and second appellate authorities held that the dominant object of the transactions effected inside the restaurant run by the dealer was "sale". Learned Tribunal held that the dealer being an unregistered dealer has not collected any tax on such sales. The periods involved in this case are for the financial years 1980 -81 and 1981 -82 and the assessment has been made under section 12(5) of the Orissa Sales Tax Act, 1947. However, the learned Tribunal keeping in view the decision of the honourable Orissa High Court in the case of Piplani Sweets v. Sales Tax Officer [1988] 70 STC 153, held that the dominant object of the transactions in the restaurant being sale the dealer was liable to pay tax, but he would get exemption of tax on the transactions of sale of food and eatables effected by him to customers for consumption inside the restaurant for the period from September 7, 1978 to February 2, 1983 in view of the provisions of section 6(2) of the Constitution of India (Forty -sixth Amendment) Act, 1982 as the dealer had not collected any tax on such sales.

(3.) THE Constitution of India (Forty -sixth Amendment) Act, 1982 (hereinafter referred to as "the Amendment Act") came into force on February 2, 1983. By section 4 of the Amendment Act, clause (29A) was inserted in article 366 of the Constitution and it reads as follows :