G.G. Sohani, J.
1. By this reference under Section 44(1) of the M. P. General Sales Tax Act, 1958, the Board of Revenue has referred the following question of law to this Court for its opinion :
Whether, under the facts and circumstances of the case, the Tribunal was justified in holding that the assessee was a dhabawala and the cooked food sold by him is exempt from payment of sales tax under Notification No. 965-V-ST dated 31st March, 1964, as extended further under Notification No. 1081-537-V-ST dated 7th April, 1967.
2. The material facts giving rise to this reference briefly are as follows : The assessee claimed to be a dhabawala and was assessed to tax under the said Act for the year 1966-67. The assessing authority did not uphold the contention of the assessee that he was a dhabawala. On appeal the Appellate Assistant Commissioner upheld the finding of the assessing authority. On appeal, however, the learned Member of the Board of Revenue held that, on the facts and in the circumstances of the case, the claim of the assessee that he was a dhabawala was justified and the sale of cooked food served by him was exempt under Notification No 965-V-ST dated 31st March, 1964, issued by the State Government. In this view of the matter, the learned Member of the Board of Revenue allowed the appeal. Hence, at the instance of the department, the Board of Revenue has referred the aforesaid question of law to this Court for its opinion.
3. In exercise of the powers conferred by Section 12 of the M. P. General Sales Tax Act, 1958, the State Government issued Notification No. 966-V-ST dated 31st March, 1964, exempting from payment of sales tax as specified in the notification cooked food excluding sweetmeats, cakes, pastries, biscuits, chocolates, toffees, lozenges and peppermint drops when sold by tandurwalas, dhabawalas, lohwalas, khonchawalas and halwais. The learned Member of the Board found on the basis of the material on record that 'katcha bhojan' was served in the assessee's establishment and that in addition to the arrangement for sitting on the floor a table was also provided with two or three chairs. The Board further found that merely because on festivals some sweetmeats were served to the customers, it would not make the assessee's establishment a restaurant. It was further found that providing newspapers and a towel for wiping hands after washing would also not convert a dhaba into a restaurant. The Board found that 'katcha bhojan' was served to customers in thalis and the sitting arrangement was mainly Indian. It was not found that the assessee was selling sweetmeats. In these circumstances the Board, in our opinion, was justified in holding that the assessee was a dhabawala.
4. The learned counsel for the State referred to a decision of this Court reported in Purohit Lodge, Durg v. Commissioner of Sales Tax, M.P. 1972 M.P.L.J. 213. In that case a Division Bench of this Court held that the terms 'tandurwala' and 'dhabawala' could not be applied to an establishment which maintains waiters, etc., and sells large quantities of sweets and 'namkins'. On the facts and in the circumstances of that case it was held that the benefit of the aforesaid notification could not be given to the assessee in that case. The decision in Purohit Lodge v. Commissioner of Sales Tax, M.P. 1972 M.P.L.J. 213, is therefore distinguishable on facts. In the instant case, as found by the Board the assessee supplied 'katcha bhojan' to its customers in thalis and the sitting pirangement was mainly Indian.
5. For all these reasons, our answer to the question referred to this Court is in the affirmative and against the department. In the circumstances of the case parties shall bear their own costs in this Court.