Krishnaswami Nayudu, J.
1. This appeal is by the State against the decree of the lower courts holding that the assessment of the sales tax at the enhanced rate of 4J pies in the rupee in respect of the turnover of the sweet-stall of the plaintiff is not legal and that the State is not entitled to levy the tax at that rate. The decision was given by the learned District Munsif of Coimbatore and confirmed in appeal by the learned District Judge of Coimbatore.
2. The respondent has been running an establishment by name Ananda Bhavan in Big Bazar Road, Coimbatore. The establishment consists of a restaurant section, pan beedi shop section, locks section and sweet-stall. We are now concerned only with the restaurant section and the sweet-stall, as the turnover of the pan beedi section and the locks section are not sought to be assessed at the enhanced rate of 4 1/2 pies in the rupee under the proviso to Section 3( 1 )(b) of the Madras General Sales Tax Act. All the four lines of business are conducted in the same building by the common proprietor, the respondent. There are separate accounts for each of the businesses and as regards the restaurant section and the sweet-stall section, it is stated that the purchase for preparing sweets and other articles of food and drink in the restaurant section and the sweet-stall are made together, but the sales are entered in different accounts. A common licence is issued for running both the restaurant and the sweet-stall, which are having separate door numbers, the sweet-stall section bearing door No. 114, while the rest of the building bears door No. 115. There is a separate entrance leading to the sweet-stall through which the public can go to that stall without the necessity of using the restaurant for the purpose. Sweetmeat and other edibles ' are no doubt commonly prepared for the use of the restaurant and the sweet-stall. From the evidence of P.W. 1, the son of the plaintiff-respondent, it is seen that there is an interchange of sweets kept in the restaurant and the sweet-stall when there is demand and when a particular variety is exhausted in either of these places. P.W. 1, however, says that when a particular kind of sweet is exhausted in the sweet-stall, and is available in the restaurant, it is taken to the sweet-stall, but no account is kept of this interchange. It is admitted that only after 1st August, 1949, that separate accounts were being maintained. The assessment is for the provisional period from 1st August, 1949, to 31st March, 1950, during which, however, separate accounts are stated to be available. P.W. 1 says that there is access from the sweet-stall to the restaurant. On this evidence, the courts below held that the sweet-stall did not attract the proviso to Section 3(1)(b)of the Act and that the assessment at the enhanced rate of 4 1/2 pies per rupee could not be supported.
3. Section 3(1) and the proviso are as follows :-
Subject to the provisions of this Act,-
(a) every dealer shall pay for each year a tax on his total turnover for such year; and
(b) the tax shall be calculated at the rate of three pies for every rupee in such turnover.
Provided that if and to the extent to which such turnover relates to articles of food and drink sold in a hotel, boarding house or restaurant, the tax shall be calculated at the rate of four and half pies for every rupee, if the turnover relating to those articles is not less than twenty-five thousand rupees.
4. Mr. Ramanujam for the Assistant Government Pleader relied on the admission of the plaintiff that the sweets that are offered for sale in the sweet-stall and those that are supplied to the consumer in the restaurant are prepared commonly and it is only in respect of the sales there are separate accounts and any interchange from the sweet-stall to the restaurant of any sweet and other edibles are not credited or debited in either of these accounts but are shown as sales where they are actually sold or supplied to the customer, and it is urged that the . plaintiff being a common dealer interested in both these concerns, it cannot be said that there are two different businesses, especially taking into consideration the system of accounts maintained in respect of these two concerns. There is no doubt that when there is no separate account of the purchase of articles for preparing sweets and edibles required for the restaurant and the sweetmeat stall, it could not be pretended that there are two separate businesses independently carried on, though by a single proprietor. But the liability to pay enhanced rate of 4 1/2 pies per rupee arises under the proviso only if the turnover relates to such articles of food and drink sold in a hotel, boarding house or restaurant, and not to articles of food and drink sold by a common proprietor, or in any business which belongs to a common proprietor. The liability for an enhanced rate would depend upon the finding whether any food and drink are sold in the sweetmeat stall and whether the stall could be considered to be a hotel, boarding house or restaurant. It is not suggested that the sweet-stall is a hotel or a boarding house even. But it is suggested that a restaurant, which means a place where refreshments and meals can be procured, may include within its content a sweetmeat stall. A restaurant implies that refreshments and meals are supplied at the place intended for consumption, restoring or refreshing those who may visit it, which could only be when the refreshments and meals are consumed at the place where the restaurant is situated. The three terms, hotel, boarding house and restaurant, imply that what is supplied as and by way of meals, refreshments and drinks are intended to be consumed at the place where facilities are provided for such consumption, and they do not refer to a stall, where such facilities are not provided, since in a stall sweetmeats are sold for the purpose of being taken away from there and not for the purpose of consuming there. It is not suggested that in the sweetmeat stall in question, provision is made for the purchasers to sit and consume the articles. The inclusion of food and drink in the proviso further reinforces the view that what is supplied or sold is intended for consumption at the place, since drink at any rate is not ordinarily intended to be taken home. Taking the language of the clause 'articles of food and drink sold in a hotel, boarding house or restaurant', the irresistible inference that could be come to is that the articles of food and drink are intended ordinarily to be consumed at the place, which cannot be the case in the case of a street-stall as in the present case, where the sweet-stall is situated on one side with a separate entrance from the street. The fact therefore of the sweet-stall being a part of the business of the hotel or the restaurant is not material in considering as to whether the proviso would apply to the present case.
5. In the result, the appeal fails and is dismissed with costs. No leave.