ODEAN RESTAURANT Vs. STATE OF PUNJAB AND OTHERS

JUDGEMENT

(1.) In this petition filed under Articles 226/227 of the Constitution of India, the petitioner has prayed for issuance of a writ of certiorari for quashing the orders dated 29.5.1992 (Annexure P-5) passed by respondent No.3 and dated 30.3.1994 (Annexure P-6) passed by respondent No.2.

(2.) The facts, in brief, necessary for adjudication of the instant appeal as narrated therein are that the petitioner is a partnership firm running a restaurant at Amritsar. The petitioner was registered as a dealer under the Punjab General Sales Tax Act, 1948 (hereinafter referred to as "1948 Act") with registration No. AMR/556 during the year 1985-86. It claimed exemption from payment of tax under the 1948 Act for the receipts on account of meals served to the customers in view of the judgments of the Hon'ble Supreme Court in Northern Indian Caterers (India) Ltd. v. Lt. Governor of Delhi, 1978 42 STC 386 and State of Himachal Pradesh and others v. Associated Hotels India Ltd., 1972 29 STC 474 wherein it was observed that the transactions in question are not 'sales' as defined in Section 2(h) of the 1948 Act. The Parliament by way of 46th Amendment, inserted Clause (29-A) in Article 366 defining the term 'sale'. It came into force w.e.f. 2.2.1983 and the States were empowered to impose tax on the transactions relating to meals served to the customers in the restaurants as 'sales'. The State of Punjab vide notification dated 13.4.1987 (Annexure P-2) amended the 1948 Act by enacting Punjab General Sales Tax (Amendment and Validation) Act, 1987 (in short "the Act") and changed the definition of sale given in Section 2(h) therein. Vide Section 4(2)(a) of the amending Act, it was provided that no tax shall be payable for the period upto the date on which the amended Act had come into force if the dealer had not collected any tax from the customers. The assessing authority vide order dated 5.5.1989 (Annexure P-4) framed the assessment of the dealer for the year 1985-86 declaring the transactions as not liable to payment of tax as no tax had been collected by the dealer from the customers. Therefore, in view of the Section 4(2)(a) of the amended Act, the assessing authority had not levied any tax despite the amendment of the 1948 Act. Respondent No.3 initiated suo motu revisional proceedings on the ground that even after the amendment of the Act, the dealer was liable to pay tax and vide order dated 29.5.1992 (Annexure P-5) not only assessed the tax amounting to L 56,237/- but also levied interest to the tune of L 69,688/- on the dealer. Feeling aggrieved, the dealer filed revision before the Tribunal. The Tribunal vide order dated 30.3.1994 (Annexure P-6) upheld the order of respondent No.3 and dismissed the revision holding that the onus to prove that the tax was not collected from the dealer was upon him which he had failed to do. Aggrieved by the order dated 30.3.1994 (Annexure P-6), the dealer filed reference under Section 22(1) of the Act for referring certain questions of law to this Court for opinion. During the pendency of the reference application, the dealer moved rectification application regarding interest. However, the Tribunal vide order dated 3.11.1998 (Annexure P-8) dismissed the said application being time barred. The Tribunal vide exparte order dated 30.9.1999 (Annexure P-9) dismissed the reference application. Thereafter, the dealer filed restoration application for recalling the order dated 30.9.1999 (Annexure P-9). The Tribunal vide order dated 19.10.2000 (Annexure P-10) dismissed the said application. Hence, the present writ petition.

(3.) Upon notice of motion having been issued, written statement was filed by respondents No.1 and 3. It was pleaded therein that the petitioner was charging tax and depositing the same. The revisional authority took up the case of the petitioner and after examination of the record, the petitioner was assessed under Section 21 of the 1948 Act and an additional demand of L 1,25,925/- was created because the petitioner had failed to discharge its onus to show that as to why it stopped charging tax when there was no change in the law between 1983 to 1985. It was further pleaded that the order of the revisional authority was upheld by the Tribunal and the reference application as well as rectification application regarding interest filed by the petitioner were also dismissed by the Tribunal. The other averments made in the writ petition were denied and a prayer for dismissal of the same was made.