JAIN, J. - (1.) THIS special appeal, along with the 38 special appeals mentioned in the schedule 'a' are directed against a common order of the learned single Judge dated 22nd of July, 1991 whereby while allowing the Writ petitions, the learned single Judge quashed the impugned assessment orders levying the sales tax on the sale of eatables in the hotel/restaurants.
(2.) FOR convenient disposal of these appeals, the facts of D. B. Special Appeal (writ) No. 346/91 are taken into consideration. Brief facts of the case are that the petitioner-respondent is running a business of restaurant in the name of M/s. Raj Mango Bar. The petitioner's case is that he serves juice of fruits, ice creams, buscuits and other cold/hot drinks to the customers visiting his restaurant for consumption within the restaurant premises and the customers are not allowed to take-away the estables and drinks served to them. The Commissioner, Commercial Taxes, Rajasthan Jaipur issued a circular dt. 7. 9. 1993 (Anx. l) directing all its officers to levy and collect taxes from all the hoteliers and restauranteurs treating the service or supplies made by them of the eatables and drinks to their customers as sales after the commencement of the Constitution (46th) Amendment Act, 1982. Respondent No. 2 in the said circular referred to a decision of the Supreme Court in Northern India Caterers case and also drawn attention of its officers towards Section 4 of the Amendment Act by which a new Clause 29 (A) in Article 366 of the Constitution of India defining the term "sale" has been inserted and stated that in view of the amendment in. the Constitution the definition of 'sale' in Section 2 (0) of the Rajasthan Sales Tax Act, 1954 now includes the transactions of service or supply of food articles or drinks by the hoteliers or restauranteurs to their customers. The Assistant Commercial Taxes officer, Ward-I, Srigan-ganagar, respondent no. 3, had proceeded to levy and collect tax from the petitioner in pursuance of the said Circular Anx. 1 on the service charges collected by the petitioner from the customers within the restaurant during the accounting years 1982- 83 and 1983-84 framing separate assessment orders dated 2nd of August, 1986 (Anx. 2 and 3 ). Vide Anx. 2 dated 2. 08. 1986 for the year 1982-83 tax of Rs. 1250/. was levied and imposed penalty of Rs. 110/-under Section 7aa of the Act for late filing of the IV quarter return, and under Section 16 (1) (n) imposed penalty of Rs. 100/- for not appearing in office on 24th of July, 1986 along with interest amounting to Rs. 741/- under Section 11b of the Act. Likewise vide Anx. 4 tax was levied to the tune of Rs. 11,750/- with interest amounting to Rs. 4975/- under Section 11b and imposed penalty of Rs. 3230/- under Section 7aa of the Act. The petitioner-respondent was served with demand notices Ans. 4 and 5. Vide Annexure 4 a demand of Rs. , 2201/- was raised for the year 1982-83 and a demand of Rs. 19,955/- was raised in respect of the year 1983-84. The petitioner-respondent was directed to deposit the said amount within fifteen days. The petitioner-respondent preferred a writ petition under Article 226 of the Constitution contending that since the State Legislature has not yet chosen to amend the definition of 'sale' given in the Rajasthan Sales Tax Act, 1954 or to provide any appropriate provision under the said State Act, the Commissioner, Commercial Taxes, Rajasthan just by an executive order cannot levy and collect the sales tax which is only the privilege of the State Legislature and therefore, the assessment orders Anx. 2 & 3 and demand notices Anx. 4 & 5 may be quashed. The respondents in their reply raised preliminary objection that alternate remedy available to the petitioner has not been availed and being a matter of Taxing Statute, the writ petition may be dismissed as not maintainable. The respondents further stated that in view of the amendment made in the Rajasthan Sales Tax Act, 1954 which are para materia with the provisions of Constitution 46th Amendment Act, 1982, the objections raised by the petitioner against the assessment orders no longer survive and the petition has become infructuous. The petitioner-respondent filed rejoinder stating that the definition of 'sale' has not been substituted from 2. 2. 1983 and when there was no definition of 'sale' in the year 1983, it cannot be said that this clause 'o' has been inserted retrospectively. The learned Single Judge after considering material on record allowed the writ petition and quashed assessment orders in terms of earlier Single Bench decision of this Court rendered in Rambagh Hotels Private Ltd. Vs. C. T. O. (1) wherein it has been held that the Constitution (forty-sixth Amendment) Act merely validates earlier law levying tax on supply of food and drink and it does not authorise levy in future without amendment to State Act. It has been further observed that tax leviable under new provisions only from date they were introduced, not from date of Constitutional amendment. In that case the learned single Judge remanded the matter to assessing authority to enquire whether sales tax was collected or not by the petitioner from its customer. If it had, the petitioner was not entitled to refund, but if the petitioner had paid the tax without recovering it from its customers, it would be entitled to refund.
(3.) MR. Mehta, learned counsel appearing on behalf of the non- petitioner-appellants has urged that the learned Single Judge has erred in not reconsidering Rambagh Hotels Private Ltd's. case (supra), which is not a Correct law since while giving the said judgment, the learned Single Judge has not taken into consideration the relevant provisions of Rajasthan Sales Tax Act as they existed prior to 1. 4. 1987. It has been urged that the decision of the Supreme Court rendered on review application filed in Northern India Cater's (India) Ltd. Vs. Lt. Governer of Delhi (2) and even the learned Single Judge has not considered a Division Bench decision of this Court rendered in Govind Ram Vs. State (3) to which Hon'ble MR. Justice M. B. Sharma (as he then was) was also a party. He has referred to various provisions of law including clause 29-A to Article 366 of the Constitution, Section 3, 2 (0), 2 (t) and 2 (f) of the Rajasthan Sales Tax Act. MR. Mehta has also contended that after the foundation of the judgments in Associated Hotels ( ) and Northern India Caterer's case was knocked out by the relevant provisions of State Laws always deemed to include within the ambit, a tax on the supply by way of or as part of any service etc. of goods being food or any other articles for human consumption. He has prayed that the impugned order of learned Single Judge may be set aside and the matter may be decided in terms of the decision of their lordships of the Supreme Court rendered in Northern India Caterer's Ltd. case (supra ). Mr. Kothari, learned counsel for the petitioner-respondent has reitered submissions made before the learned Single Judge. We have heard learned counsel for the parties and perused the material on record as well as the case law cited at Bar and the relevant provisions of law. ;