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Manoranjan Bar and Restaurant Vs. the Assessing Authority and anr. - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtJammu and Kashmir High Court
Decided On
Case Number Writ Petition No. 88 of 1972
Judge
Reported in[1975]35STC568(NULL)
AppellantManoranjan Bar and Restaurant
RespondentThe Assessing Authority and anr.
Appellant Advocate Subash Dutt, Adv.
Respondent Advocate A.D. Singh, Adv.
DispositionPetition dismissed
Excerpt:
- .....kashmir general sales tax act, 1962, the government hereby direct that the sales of articles of food and drink sold by any halwai or any dealer who runs a tandoor, loh, dhabha, hotel, restaurant or other similar establishments where indian food preparations including tea were served during the period from 1st april, 1962, to the date of issue of this notification shall be deemed to have been exempted from the payment of tax provided that-(a) such of the sales on which tax has already been recovered by the dealers shall not be deemed to have been exempted ;(b) the dealers give a declaration that if it is found from their accounts that such sales have been made at a price higher than the market price it shall be presumed that sales tax has been charged thereon and the amount so.....
Judgment:

Syed Wasi-ud-Din, J.

1. In this writ petition the petitioner has prayed for the issue of a writ of certiorari for quashing the order of respondents 1 and 2 whereby the petitioner has been assessed and declared liable to tax under the General Sales Tax Act for the years 1962-63, 1963-64 and 1964-65. The case of the petitioner briefly stated is as follows :

2. The petitioner during the accounting years 1962-63, 1963-64 and 1964-65, assessment years 1963-64, 1964-65 and 1965-66, was carrying on business under the name and style of Messrs. Manoranjan Bar and Restaurant at Canal Road, Jammu. He submitted his returns and he was made liable to tax by the sales tax authorities and two orders were passed by the authorities, one of these was for the accounting year 1962-63 and the other for the years 1963-64 and 1964-65. Both these orders were passed on 31st December, 1966, and, according to the petitioner, assessment of sales tax was made in respect of food-stuff supplied from the kitchen of the petitioner and not on liquor. Appeal was filed against these orders and in the revision before the Commissioner of Sales Tax, the petitioner raised a contention to the effect that he was entitled to an exemption from the tax by virtue of S. R. O. 28 dated 21st January, 1967, but the Commissioner of Sales Tax did not properly interpret the aforesaid notification with the result that he rejected the revision of the petitioner.

3. The respondents in the counter-affidavit have submitted that the interpretation as given by the Sales Tax Commissioner was correct, and the petitioner was not entitled to the exemption claimed. At the time of the hearing of the writ petition the only contention which has been made is that the petitioner is entitled to the exemption as allowed by S. R. 0. 28 and, therefore, it would be necessary to examine that circular itself. The circular has been attached as an annexure to the petition and it is as follows :

S. R. O. 28. In exercise of the powers conferred by Section 5 read with Section 27 of the Jammu and Kashmir General Sales Tax Act, 1962, the Government hereby direct that the sales of articles of food and drink sold by any halwai or any dealer who runs a tandoor, loh, dhabha, hotel, restaurant or other similar establishments where Indian food preparations including tea were served during the period from 1st April, 1962, to the date of issue of this notification shall be deemed to have been exempted from the payment of tax provided that-

(a) such of the sales on which tax has already been recovered by the dealers shall not be deemed to have been exempted ;

(b) the dealers give a declaration that if it is found from their accounts that such sales have been made at a price higher than the market price it shall be presumed that sales tax has been charged thereon and the amount so collected shall be deposited in the treasury on account of sales tax.

By order of the Government of Jammu and Kashmir.

4. A perusal of this S. R. O. shows that there are some important features which are worthy of consideration and these are as follows :

(i) exemption has been given in respect of sales of articles of food and drinks;

(ii) such exemptions have not been given to all those who sell food and drinks but it has been confined to two categories of establishments : one of of these is to such establishments which are specifically enumerated such as of any halwai, or any other dealer who runs a tandoor, loh, dhabha, hotel, restaurant. The second category is of those whose names have not been specifically given but have been described as 'other similar establishments where Indian food preparations including tea are served.

5. It may be mentioned here that this position was not disputed that for the relevant periods for which the exemption was claimed, the petitioner if he comes within the contemplation of the exemption given under this S. R. O., then he would be entitled to the exemption, but the main controversy between the parties has been to the effect that this exemption could not be extended to the case of the petitioner and he was thus not entitled to the exemption. It would be also relevant to refer to the order of the Commissioner before whom this point was urged. He, while dealing with this aspect of the matter in para 7 of his judgment, expressed his opinion to the effect that the exemption is available to only among other establishments to such hotels and restaurants that sell Indian food preparations including tea and, in para 8, he expressed his opinion that the petitioner is running a restaurant with bar and not merely a restaurant and his case, therefore, would not be covered by the provisions of the notification. He also expressed his opinion that the purpose of the notification is to grant exemption to sales only of ordinary food preparation's including tea and it does not purport to exempt sales of liquor also, which are articles of luxury and are served by institutions and establishments, which are specifically licensed under the excise law. Lastly, he was of the opinion that the word 'drink' used in the notification has to be construed so as to mean articles like lemonade, Fanta, Coco Cola, sherbat, shikanjbeer and soda and non-alcoholic drinks. The contention of Mr. Subash Dutt appearing for the petitioner is that the Commissioner has taken an erroneous view of the matter and, in view of S. R. O. 28, the petitioner was entitled to the exemption. His first submission in this connection is that although the petitioner was running a bar also but he was running a restaurant at the same time and was supplying food-stuff and, as such, was entitled to exemption. Secondly, it has been urged that the assessment which has been made was in respect of kitchen sales, that is to say, the articles of food, which had been supplied to the customers and, in this view of the matter also, the petitioner would come within the contemplated exemption granted by the aforesaid S. R. 0. His third contention was that it will be taking a narrow view of the matter because the word 'drink' not only means and implies non-alcoholic drinks but also liquor and there is no justification to refuse exemption to the petitioner on the ground that he was selling liquor also.

6. Mr. A. D. Singh, appearing for the respondents, on the other hand, has contended that the interpretation of the words and the language used in S. R. O. 28 are clearly indicative of the fact that the petitioner is not entitled to such an exemption. He has also submitted that to consider and appreciate the intention of issuing S. R. 0. 28 it has also to be seen in the background as to what the previous notification was and, considering that, it will appear that this S. R. O. 28 was only to afford relief to poor establishments such as tandoor, loh, dhabha, etc.

7. I will now in this connection first of all refer to the previous notification which is S. R. 0. 157 dated 15th May, 1965. According to this S. R. O. there were two schedules : the First Schedule lays down as to what will be the rate of tax and the Second Schedule showed as to who would be exempted. Item No. 34 of the First Schedule is to the effect, 'sales made by dhabhawallas, tandoorwallas, lohwallas, tea stall-holders and halwais... 2 per cent'. Item No. 35 was 'all other goods excepting goods in the Second Schedule'. Now, in the Second Schedule, I may refer to item No. 68, which granted exemption to 'articles of food and drink sold in boarding houses conducted for exclusive use of students or canteens run exclusively for the use of employees of factories or Armed forces'. It appears that by this S. R. 0. although exemption was granted to the canteens, etc., but no exemption was granted to dhabawallas, tandoorwallas, lohwallas, tea stallholders and halwais. Now, vide S. R. O. 28, which came into force on 21st January, 1967, exemption was granted to lohwallas, dhabawallas, tandoorwallas, etc. In my opinion, considering the background stated above and the language of the articles of food as such, exemption was granted if the articles of food were being sold by such types of dealers who are mentioned in the notification, It has been no doubt contended that the petitioner's establishment was a restaurant, but to me it appears that it was not purely a restaurant, it was a restaurant-cum-bar and it is very difficult to conceive the establishment as only a restaurant in isolation. It has to be considered that it was an establishment not only supplying food-stuff but also liquor. It is also significant that all restaurants or hotels cannot sell liquor and only such restaurant and hotel can sell liquor which have got the proper licence under the Excise Act. The petitioner in this case must have been possessing a licence for selling liquor. So, in the strict sense, it cannot be said that the petitioner's establishment was a restaurant simpliciter and the character of the establishment of the petitioner is certainly distinguishable from the nature of an establishment which is purely a restaurant. It also appears to me that it is rather difficult to hold that the word 'drink' used in the S. R. O. would also include liquor. Firstly, because all restaurants cannot supply liquor unless they hold a licence. Then, secondly, the word 'drink', which has been used, is co-related with the word 'tea' in the notification. It would naturally mean that such of the drinks which are beverages in the nature of tea, etc., may it be hot or cold, but certainly considering the entire notification, it cannot mean that the Government meant that the word 'drink' used there would also include liquor. It is also a well-known fact that drink and such other beverages may be an accompaniment of a meal, but liquor is not a necessary accompaniment especially for the general mass of people.

8. Having regard to all these facts, I am of the opinion that the petitioner's establishment did not come within the exemption of S. R. O. 28 and, therefore, this petition fails and is hereby dismissed. There will be no order as to costs.


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