- (1.) THIS judgment will dispose of Civil Writ Petitions Nos. 2054 and 2170 of 1982, because common questions of law and facts are involved in them.
(2.) THE facts as they emerge from the pleadings of the parties are as under : Messrs. Gopi Nath and Sons who are the petitioners in Civil Writ Petition No. 2054 of 1982 and Messrs. Imperial Hotel and Restaurant, Karnal, petitioners in Civil Writ Petition No. 2170 of 1982, run restaurants at Karnal. Meals are served there to the public according to a la carte menu. In addition to the service of meals, beverages and tea, the petitioner-concerns have got bar licences for beer and whisky and the customers can consume liquor and beer. The petitioners had been charging sales tax on eatables and drinks up to the second quarter of the year 1978-79, at the rate of 7 per cent and used to pay this tax to the sales tax department. However, the Supreme Court in Northern India Caterers (India) Ltd. v. Lt. Governor of Delhi [1978] 42 STC 386 (SC) held that the service of meals to visitors to the restaurants was not taxable and that was so whether the charge was for the meals as a whole or according to the dishes separately ordered. The petitioners stopped charging sales tax from their customers in the third quarter of the year 1978-79 and did not show the receipt of any sales tax in the returns filed by them and did not deposit any tax in relation to meals and drinks. The Assessing Authority accepted this position and did not point out that the petitioners were liable to charge sales tax on the food and drinks served to the customers. The petitioners continued filing quarterly sales tax returns showing no sales tax being charged from the customers visiting the restaurants and no tax being deposited on this score. The judgment in the Northern India Caterers' case [1978] 42 STC 386 (SC) was reviewed by their Lordships of the Supreme Court. Their Lordships reconsidered the matter and declined to change the decision given earlier and upheld the earlier judgment.
(3.) ON 28th December, 1981, the Assessing Authority issued show cause notice in form S. T. 25 to Messrs. Gopi Nath and Sons under Section 28 (2) of the Haryana General Sales Tax Act, 1973 (hereinafter called "the Act" ). The petitioner appeared before him and contended that he did not sell food and only rendered services to the customer. The Excise and Taxation Officer held that the restaurant of the petitioner was run for the purpose of sale of foodstuffs. No special service is being rendered for which any appreciable sum can be charged by the dealer. The dealer has failed to establish that any condition has been laid down that the customer cannot take away the left-overs. On the other hand there is a prevalent practice that that the people purchase foodstuffs and carry away in the tiffin boxes. They have challenged this order of the Assessing Authority. Similarly, a show cause notice in form S. T. 25 dated 21st July, 1980, was issued to Messrs. Imperial Hotel and Restaurant, Karnal, which culminated in passing an order dated 23rd March, 1982, vide which the petitioners were assessed to pay sales tax on the gross turnover annually at the rate of 7 per cent and the petitioners were made liable to pay sales tax, which they had not charged from their customers. The petitioners filed appeal against that, but the appellate authority did not decide it for a long time. The assessing authority issued show cause notice in form S. T. 25 on 2nd December, 1981, for the assessment year 1979-80 and assessed the petitioners to the tune of Rs. 37;000 odd on 23rd March, 1982. Aggrieved, the petitioners have filed these writ petitions.;