BHAGWAN HOTEL Vs. ASSESSING AUTHORITY

JUDGEMENT

(1.) IN this petition under Article 226 of the Constitution the petitioner is Bhagwan Dass who is the preprietor of Bhagwan Hotel in Civil Lines at Rohtak. By an order of 24th June, 1963, the assessing authority, respondent 1, assessed the petitioner to sales tax in the amount of Rs. 319-23 np. for the assessment year 1959-60, finding that the establishment maintained and carried on by the petitioner is a hotel and not a dhaba.

(2.) THE petitioner questions the finding of fact by the assessing authority that his establishment is a hotel and urges that it is a dhaba. The Punjab General Sales Tax Act, 1948 Punjab Act 46 of 1948, by Section 4 creates liability to pay sales tax and in Section 5 provides the manner of levy of the same and fixation of the rate of sales tax for that purpose. Leaving out Sub-section (2), which is not material here, Sub-section (1) of Section 6 says-"no tax shall be payable on the sale of goods specified in the first column of Schedule B subject to the conditions and exceptions, if any, set out in the corresponding entry in the second column thereof and no dealer shall charge sales tax on the sale of goods which are declared tax-free from time to time under this section. " In Schedule B, item 49 exempts "indian food preparations ordinarily prepared by tandoorwalas, lohwalas and dkabas : when sold by persons running tandoors, lohs and dhabas exclusively. " It is the benefit of this exemption that the petitioner claims when he avers that his establishment is a dhaba and not a hotel. The second question that is raised by the petitioner is that under Sub-section (4) of Section 11 the assessing authority must proceed to assess, in the case of best judgment assessment, within three years preceding the date of assessment; otherwise it is said that assessment is barred under that provision as has been held in Madan Lal Arora v. Excise and Taxation Officer, Amritsar A. I. R. 1961 S. C. 1565 in which their Lordships have held that the three years within which the authority could proceed to make the best judgment assessment have to be counted from the end of each quarter in respect of which the return had been filed.

(3.) HOWEVER, while the petitioner has been resisting the levy of sales tax upon his establishment, there have been changes in the law by amendments of Punjab Act 46 of 1948 which, according to the respondents, completely negative the two stands taken by the petitioner in this petition.