7 Vs. STATE OF HARYANA AND OTHERS

JUDGEMENT

(1.) This order will dispose of CWP 4443 of 1984 (M/S Gopi Nath and Sons Vs. State of Haryana and others) and C. W. P. No. 10001-1989 (7-Eleven Restaurant, Hissar Vs. State of Haryana and Others) involving the identical questions of law and facts. For the purpose of judgment, facts have been picked up from CWP No. 10001 of 1989. In these two writ petitions, the petitioners have challenged the constitutional validity of Haryana General Sales Tax (Amendment and Validation) Act, 1984 especially its clause (ii) (1) (V) of Sec. 2 defining the expression "sale".

(2.) The petitioner is a partnership concern carrying on the business of running a restaurant near Telephone Exchange, Hissar since 1987, wherein meals, snacks, hot and cold drinks are served to the public for consumption. The State of Haryana made Haryana Sales Tax (Amendment) Ordinance, 1984, Haryana Ordinance 2 of 1984 on 21st March, 1984 which was replaced by Amendment Act on 18th April, 1984. The Amendment Act was introduced with a view to enlarge the scope of word 'sale' in view of the amendment in the Constitution through the Constitution (46th Amendment) Act, 1982 and to validate the levy of tax on supply of food and drinks in the hotels and restaurants in the past according to the Statement of Object & Reasons appended to the Bill. The Amendment Act substituted the definitions of "Purchase" and "sale" by Sec. 2 thereof in the principal Act and enacted it retrospectively by section 12 thereof. The Assessing Authority, Hissar, respondent No. 3 in pursuance of the amendments made in the principal Act regarding definitions of "sale" and "purchase", issued notices to the petitioner for the year 1987-88 and from 1st April, 1989 to 30th June, 1989 on 28th March, 1989 and 26th June, 1989 for making assessment by Annexures P-1 and P-2 on 28th March, 1989 and 26th June, 1989. The petitioner appeared before the Assessing Authority but the latter was adament to make assessment as per Amended Act. Feeling aggrieved by the aforesaid amendment in the principal Act, the petitioner filed the present writ petition.

(3.) When the case was called for hearing, the learned Counsel for the State of Haryana cited Builders Association of India Vs. Union of India and others, (1989) 73 S.T.C. 371 in order to show that the validity of the Constitution (46th Amendment) Act, 1982 has been upheld by the Supreme Court. The learned Counsel for the petitioner was unable to repell the contention of the State Counsel, and could not advance any argument on this question. However, Mr. Jaswant Jain, the learned Counsel appearing on behalf of 7 Eleven Restaurant, Hissar, contends that the petitioners are not liable to pay tax on the foodstuffs and drinks served in their hotel premises. In order to fortify this submission, he relied upon the decision of a Division Bench dated 3rd Feb., 1988 rendered by the Orissa High Court in Piplani Sweets Vs. Sales Tax Officer and another, (1988) 70 S.T.C. 153.