AASIANA BAR Vs. STATE OF BIHAR

JUDGEMENT

(1.) In this case, the petitioner has challenged the orders of assessment as contained in annexures 1, 1/1, 1/2 and 1/3, that is, for the years 1974-75, 1975-76, 1976-77 (from 1st April, 1976 to 22nd May, 1976), 1976-77 (from 23rd March, 1976 to 31st March, 1977) respectively.

(2.) The principal points upon which the petitioner has filed the present writ petition challenging the aforementioned orders of assessment are that no sales tax was payable with regard to the articles of food sold in the restaurant itself and consumed by the customers. In this connection reference has been made to a decision of the Supreme Court reported in AIR 1978 SC 1591 [Northern India Caterers (India) Ltd. v. Lt. Governor of Delhi]. The aforementioned judgment came up for review also and the same is reported in AIR 1980 SC 674 [Northern India Caterers (India) Ltd. v. Lt. Governor of Delhi].

(3.) The aforementioned points have also been considered in a Division Bench judgment of this Court in C. W. J. C. No. 1430 of 1981 (R) and C. W. J. C. No. 1433 of 1981 (R) (Rajasthan Jalpan v. Additional Superintendent of Commercial Taxes) wherein it has been held that "the food-stuffs which were served to the customers in the restaurant, the dominant purpose whereof was sale of food and the rendering of services were merely secondary and unless and until such a finding is arrived at, no sales tax is payable to the food-stuffs so served to the customers in the restaurant". The learned counsel for the petitioner further draws my attention to the Constitution (Forty-sixth Amendment) Act, 1982 whereby and whereunder Article 366 was amended by insertion of a clause, that is, (29A). Article 366(29A)(f) reads as follows :