Pradyot Kumar Banerjee, J.
1. This rule is directed against the assessment order passed by the respondent on the petitioner who carries on business of a boarding house. The petitioner's case is that the petitioner runs the boarding house where the boarder is admitted on a daily basis and consolidated charges are payable strictly by cash in advance which includes meals and lodging. Meals are also served to the boarder's guests if it has been properly notified to the manager. The short question which arises for consideration is whether the boarding house is assessable under the Bengal Finance (Sales Tax) Act, 1941. From the assessment order passed by the Commercial Tax Officer it appears that the Commercial Tax Officer as also the Assistant Commissioner have tried to break up the rental charges of the boarding and the tiffin, etc., and by that process has made an assessment against the petitioner. In view of the decision of the Supreme Court reported in State of H.P. v. Associated Hotels of India Ltd. A.I.R. 1972 S.C. 1131, the assessment cannot be sustained. In the said case the Supreme Court was considering a similar case. The respondent-company carries on business as hoteliers and conducts several hotels including the 'Cecil Hotel' at Simla. Besides conducting hotels, it also carries on restaurant business. As part of its business as hoteliers, the company receives guests in its several hotels to whom, besides furnishing lodging, it also serves several other amenities, such as public and private rooms, bath with hot and cold running water, linen, meals during stated hours, etc. The bill tendered to the guest is an all inclusive one, that is to say, a fixed amount for the stay in the hotel for each day and does not contain different items for each of the aforesaid amenities. That is, however, not the case in its restaurant business where a customer takes his meal consisting either of items of food of his choice or a fixed menu. The primary function of such a restaurant is to serve meals desired by a customer, although along with the food, the customer gets certain other amenities also, such as service, linen, etc. The bill, which the customer pays, is for the various food items which he consumes or at a definite rate for the fixed menu, as the case may be, which presumably takes into account service and other related amenities. The petitioner contended that the hotel receives guests primarily for the purpose of lodging, that when so received, the management provides him with a number of amenities incidental to such lodging and with a view to render his stay in the hotel comfortable including meals at fixed hours, that the transaction between the company and such a guest is one for the latter to stay and not one of sale of food-stuffs supplied as one of the incidental amenities, that the bill given by the company and paid by the guest is one and indivisible, that is, a fixed amount per day during his stay in the hotel and does not consist of separate items in respect of the several amenities furnished to him including meals served to him, and that the transaction so entered into does not envisage any sale of food since the guest cannot demand a rebate or deduction if he were to miss a meal or meals, nor is he entitled to carry away or deal with in any manner the food served at his table, if a part of it remains unconsumed. The High Court held that a transaction between a hotelier and his resident-visitor did not involve a sale of food when the former supplied meals to the latter as one of the amenities during his residence, and that if there was one inclusive bill, it was incapable of being split up in the absence of any rates for the meals agreed to between the parties as part of the transaction between the two. It was further held by the High Court that the transaction was primarily one for lodging, that the board supplied by the management amounted to an amenity considered essential in these days in all properly conducted hotels, and that when so supplied, it could not be said to constitute a sale every time a meal was served to such a resident-visitor. The appeal, by special leave, was filed against this view of the High Court. The Supreme Court held in paragraph 17 as follows :
The transaction between a hotelier and a visitor to his hotel is thus one essentially of service in the performance of which and as part of the amenities incidental to that service, the hotelier serves meals at stated hours. The revenue, therefore, was not entitled to split up the transaction into two parts, one of service and the other of sale of food-stuffs and to split up also the bill charged by the hotelier as consisting of charges for lodging and charges for food-stuffs served to him with a view to bring the latter under the Act.
2. Applying this principle in the present case it appears that on perusal of annexure A to the petition which is an admission form to the boarding house, it is clear that the charge for staying in the boarding house includes charge for meal to be taken and even if the boarder does not take the meal he will not be entitled to the rebate. In view of the Supreme Court's decision, the assessment is not in accordance with law.
3. I, therefore, set aside the order of assessment as also the appellate order.
4. The rule is made absolute. There will be no order as to costs.
5. The security already filed is permitted to be withdrawn after two months.