1. There are two reference under section 61(1) of the Bombay Sales Tax Act, 1959. As the same question has been referred in both the references and all the material facts are the same, except for the respective periods under assessment, they are being disposed of by this common judgment. The period under assessment in S.T.R. No. 28 of 1979 is the period from 1st July, 1965 to 30th June, 1966. The period under assessment in S.T.R. No. 29 of 1979 is 1st July, 1966 to 30th June, 1967. Incidentally, we may mentioned that S.T.R. No. 28 of 1970 arises from the decision of the Sales Tax Tribunal in Second Appeal No. 675 of 1972 and S.T.R. No. 29 of 1979 arises from the decision of the Tribunal in Second Appeal No. 676 of 1972. We propose to refer to the said periods under assessment as 'the relevant periods'. The question submitted to us for determination in these two references is as follows :
'Whether on the facts and circumstances of the case, the Tribunal was correct in coming to the conclusion that the customers of the appellate had agreed to purchase snacks and soda water along with liquor from the respondent ?'
2. During the relevant periods the respondent conducted a western style hotel in which there were facilities for lodging and boarding. In that hotel, the respondent ran a liquor bar where liquor and wines were served to customers who held permits to consume the same. In respect of the period 1st July, 1965 to 30th June, 1966 the Sales Tax Officer concerned determined the taxable turnover of liquor of the respondent at Rs. 4,63,908 and in respect of the period 1st July, 1966 to 30th June, 1967 the Sales Tax Officer determined the taxable turnover of liquor of the respondent at Rs. 5,79,698. These sales were subjected by the Sales tax Officer to tax at 45 per cent. under entry 1 of Part II of Schedule D to the Bombay Sales Tax Act as it stood at the relevant time. This was on the footing that the said turnover comprised the aggregate of he amounts received by the respondent as the sale price of liquor. The respondent-dealer contended before the Sales Tax Officer that according to Prohibition Law, liquor or wines could not be supplied to customers unless snacks and soda water were supplied with it and the respondent submitted that the price of snacks and soda water should be deducted from the turnover of sales of liquor which was subjected to general sales tax at 45 per cent. The Sales Tax Officer found that the bills given by the respondent did not contain a separate charge for the supply of snacks and sod water, and hence the Sales Tax Officer came to the conclusion that the supply of snacks and soda water was gratis or free of charge. He proceeded on the footing that even though the respondent might be under an obligation to supply snacks and soda water to its customers to whom liquor was supplied, yet it was open to the respondent to supply snacks and soda water free of charge. The Sales Tax Officer rejected the claim of the respondent that the price of snacks and soda water should be deducted from the turnover of sales of liquor and wines. The respondent preferred appeals to the Assistant Commissioner of Sales Tax, who dismissed the same. The order of the Assistant Commissioner does, however, show that before him the respondent-dealer had explained that along with the bills which showed the composite amount charged for liquor and wines as well as snacks and soda water, a separate chit was issued for internal accounting which showed the value of snacks and soda water. The respondent then preferred two second appeals to the Tribunal. The Tribunal came to the conclusion that the supplies of snacks and soda water by the respondent to its customers in the liquor bar were not made gratis but represented the sales of these articles by the respondent to its customers. The Tribunal observed that the customers of the respondent who needed drinks also needed or required snacks and soda water with it and it came to the conclusion that the customers of the respondent had, in these circumstances, agreed impliedly to purchase snacks and soda water along with liquor and wines from the respondent. The Tribunal, therefore, set aside the orders of the lower authorities disallowing the deduction of the price of snacks and soda water from the price of liquor and wines. The Tribunal remanded the matter to the Assistant Commissioner of Sales Tax for fresh investigation to determine the price of snacks and soda water served with liquor and wines and gave a direction that the aggregate price of snacks and soda water served with liquor and wines should be separated from the taxable turnover of sales of liquor and wines by the respondent. The Tribunal further took the view that if these snacks and soda water were not covered by the exemption granted by entry 14 of Schedule A to the said Act, the same would have to be taxed at the appropriate rate. It is the correctness of this decision which is sought to be tested before us by way of the aforestated question.
3. The only submission made by Mr. Shah, learned counsel for the Commissioner, before us was that on the facts and in the circumstances of the case, it must be held that snacks and soda water were served gratis or free of charge to the customers of the respondent to whom liquor and wines were supplied at the bar run by the respondent. In out view, this submission is devoid of merit. The respondent obviously was running a hotel and a bar in it with a view to make profit. Whatever was supplied to the customers could normally be presumed to have been supplied for a price or consideration and in view of this, it would be utterly illogical to hold that snacks and soda water were supplied by the respondent gratis or free of charge to its customers in the bar who consumed liquor or wines, merely because separate charges for snacks an soda water were not mentioned in the bills. The customers of the respondent who went to the bar must have known by the time they were served with liquor or wine that snacks and soda water were served with it, whether serving the same was required by law or not. The customers also necessarily knew that they had to pay for what was supplied to them, and hence the only inference could be that when customers asked for liquor or wines, they agreed to purchase not only the liquor or wines ordered by them, but snacks and soda water which came with it. There is, therefore, no warrant for assuming that snacks and soda water were supplied free of charge or gratis to the customers who ordered liquor or wines. Mr. Shah was unable to point out a single circumstances from which we could infer that the supply of snacks or soda water were served free of charge, apart from the circumstances that no separate charge was mentioned by the respondent in the bills for snacks or soda. This, by itself, can hardly lead to a conclusion that snacks and soda water were served free of charge. Apart from this, the facts found by the Assistant Commissioner show that although the charges for snacks and soda water were not specifically mentioned in the bill, a separate chit was issued for internal accounting which showed the value of these items. It is, therefore, not as if it will not be possible to determine the value of the price of snacks and soda water served with liquor and wines. Even apart from the said chit, the value of these articles could easily be determined by a proper factual investigation.
4. We may make it clear that, in a sense, the Tribunal, which is the final fact finding authority, came to the conclusion that the facts on record lead to an inference that when the customers of the respondent agreed to purchase liquor or wine, they also agreed to purchase snacks and soda water along with liquor and wines from the respondent. This, in a sense, can be regarded as an inference of fact so that it would not be open for us to question that inference at all. We have, however, to avoid any controversy, examined the correctness of the said inference taking into account the facts on record and we find that the inference was quite justified.
5. The question referred to us is, therefore, answered in the affirmative and in favour of the respondent-dealer.
6. The Commissioner to pay the costs of this reference to the respondent-dealer.