- (1.) THE case is taken up for hearing. Heard the learned advocate for the applicant and the learned State Representative.
(2.) THIS is an application under article 226 of the Constitution which has been transferred to this Tribunal by the High Court, Calcutta, for disposal under section 15 of the West Bengal Taxation Tribunal Act, 1987. In the writ application, the applicant has prayed for cancellation of the assessments for the four quarters ending on March 31, 1974, March 31, 1975, March 31, 1976 and March 31, 1977 under the provisions of the Bengal Finance (Sales Tax) Act, 1941 and for quashing four certificate cases for realisation of demand on the basis of these assessments on the ground that the applicant, which carries on business of restaurant at 20, Park Street, Calcutta-16, serves foodstuff and drink to customers as incidental to the other services and amenities rendered to them. The applicant has referred to the judgment of the honourable Supreme Court in the case of Northern India Caterers (India) Ltd. v. Lt. Governor of Delhi [1978] 42 STC 386 in support of their contention that they are not liable to be taxed under the provisions of the Bengal Finance (Sales Tax) Act, 1941. In the affidavit-in-opposition filed for the respondents it was alleged that the services and amenities provided by the applicant in its restaurant are incidental to the supply and sale of food and drinks to the visiting customers.
(3.) IN view of the insertion of section 26a in the Bengal Finance (Sales Tax) Act, 1941, with effect from October 1, 1983 and the amendment of the definition of the word "sale" in section 2 (g) of that Act of 1941, it is not necessary to enter into the question as to whether the services and amenities provided by the applicant are incidental to the supply and sale of food and drinks to the visiting customers. In the present definition of "sale" under section 2 (g) (iii) of the Act of 1941 read with section 26a of that Act, the applicant cannot evade assessment to tax under the provisions of the Bengal Finance (Sales Tax) Act, 1941, for the disputed periods, which are anterior to September 7, 1978 mentioned in section 26a (2) (a) of the Act of 1941. The present position of the law in the matter has also been discussed by this Tribunal in the case of Nimai Chandra Guin v. Commercial Tax Officer reported in [1989] 75 STC 322. In the circumstances, the case is to be dismissed when there can be no exemption on the basis of the provisions in section 26a (2) of the Act of 1941 in this case, covering the periods of 4 years from the four quarters ending on March 31, 1974 up to the period of four quarters ending on March 31, 1977.;