Dr. Satish Chandra, J. - (1.) BOTH the revisions have been filed under section 11 of the U.P. Trade Tax Act 1948 against the common judgment and order dated July 5, 1999 passed by the Trade Tax Tribunal, Lucknow, in Second Appeal Nos. 555 and 556 of 1990 for the assessment years 1981 -82 and 1982 -83. The brief facts of the case are that the assessee is engaged in the hotel business and selling the tea, coffee and namkeen, etc. The assessee was also serving food items in the restaurant. The submission of the assessee is that as per the ratio laid down in the case of Northern India Caterers (India) Ltd. v. Lt. Governor of Delhi : (1978) 42 STC 386 (SC) : (1978) 4 SCC 36, the food items served in the restaurant are not amount to a sale. But the assessing officer has considered the service items as a sale and made the addition for both the assessment years. However, the first appellate authority has followed the ratio laid down in the case of Northern India Caterers (India) Ltd. : (1978) 42 STC 386 (SC) : (1978) 4 SCC 36 and deleted the additions for both the assessment years under consideration. Being aggrieved, the Department has filed appeals, before the Tribunal who has restored the order passed by the assessing officer for both the assessment years. Being aggrieved the assessee has filed the present revisions.
(2.) WITH this background, Sri Anupam Mehrotra, learned counsel for the revisionist, Submits that at the relevant time, the ratio laid down -in the case of Northern India Caterers (India) Ltd. : (1978) 42 STC 386 (SC) : (1978) 4 SCC 36 was applicable to the assessee's case. So, he made a request to delete the additions. On the other hand, Sri Manish Mishra, learned standing counsel relied on the impugned order passed by the Tribunal.
(3.) AFTER hearing both the parties, it appears that as per the ratio laid down in the case of Northern India Caterers (India) Ltd. : (1978) 42 STC 386 (SC) : (1978) 4 SCC 36 food items served on the table does not amount sale. But the ratio laid down in this case was nullified by an amendment in article 366 of the Constitution of India, where sub -clause (29A)(f) was inserted. The said clause on reproduction reads as under: Article 366(29A)(f) a tax on the supply, by way of or as part of any service or in any other manner whatsoever, of goods, being food or any other article for human consumption or any drink (whether or not intoxicating), where such supply or service, is for cash, deferred payment or other valuable consideration, and such transfer/delivery or supply of any goods shall be deemed to be a sale of those goods by the person making the transfer, delivery or supply and a purchase of those goods by the person to whom such transfer, delivery or supply is made.;