Case: Moulin Rouge Pvt. Ltd Vs. The Commercial Tax Officers &amp; Ors

The appellant, Moulin Rouge, is a company registered under the Indian Companies Act. Its business consists of running a restaurant at 20, Park Street, Calcutta-16. Apart from food and drink, it provides the customers with various services and amenities. The restaurant is air-conditioned. It provides upholstered cushioned seating, subdued lighting and also music. High class crockery and cutlery are provided. The restaurant also employs highly trained stewards who are well dressed. Personal and prompt individual attention is given to the customers. The customers cannot take away any food from the restaurant for home consumption. Even unused or unconsumed portions of food and drink are not allowed to be taken away by the customers. There is no sale of any food or foodstuff across theThis Court in the case of State of Punjab v. Associated Hotels of India Ltd. held that a transaction between a hotelier and a visitor to a hotel was essentially of service. As part of the amenities incidental to that service, meals are provided in the hotel at stated hours. The Revenue was not entitled to split up the bills of the hoteliers on the ground that the bills included not only charges for lodging but also charges for foodstuff with a view to bring the latter under the province of Punjab General Sales Tax Act. It is to be noted that the case dealt with the question of levy of sales tax on supply of food by a hotel to itsThe case of the appellant is that, on legal advice, and on the basis of the aforesaid judgment it did not collect any sales tax for food and drinks provided by it to its customers. The appellant had no liability to pay or to collect any sales tax on the food and drinks supplied by it as these were not separately charged for but were included in the bills for various services and amenities provided by it to its customers. However, on 26-4-1978, the Commercial Tax Officer passed an ex parte, best judgment assessment in respect of the four quarters ending on 31-3-1974, 31-3-1975, 31-3-1976 and 31-3-1977 imposing sales tax and penalty on the appellant. Since the appellant failed to pay the tax demanded, a certificate case was started. The appellants case is that it is not liable to pay sales tax on food and drink sold by it in its restaurant. The principles laid down in the case of Associated Hotels apply in full force to itsThe question of leviability of food sold by a restaurant to its customers directly came up for consideration in the case of Northern India Caterers (India) Ltd. v. Lt. Governor of Delhi. That was a case under Bengal Finance (Sales Tax) Act, 1941 as extended to the Union Territory of Delhi. The question was whether the service of meals to casual visitors in the restaurant was taxable as a sale - (a) when the charges were lump sum per meal or (b) when they were calculated per dish. It was held that the Revenue was not entitled to split up the transaction into two parts, one of service and the other of sale of foodstuffs. An approach similar to the case of the hotels was adopted. It was explained that the classical legal view was that when a number of services were concomitantly provided by way of hospitality, the supply of meals must be regarded as ministering to a bodily want or to the satisfaction of a human need. What the customer paid for included more than the price of the food as such. It included all that entered into the conception of service. It did not contemplate the transfer of the general property in the food supplied as a factor to the service rendered. It was ultimately held that the service of meals to visitors in the restaurant of the appellant was not sale of food and was not taxable under the Bengal Finance (Sales Tax) Act, 1941. The position would be the same whether a charge was imposed for the meal as a whole or according to the dishes separatelyAs a result of these two judgments, food served by a hotelier to its boarder or by a restaurant to its customer could not be subjected to sales tax. The Legislature tried to retrieve the situation for the States by passing the Constitution (Forty-sixth Amendment) Act, 1982 by which clause (29-A) was inserted in the definition of "tax on the sale or purchase of goods" by amending Article 366 of the Constitution. As a result of this amendment, tax on sale or purchase of goods was given an expanded meaning to include 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 anyFollowing the insertion of clause (29-A) in - Article 366 of the Constitution, the Bengal Finance (Sales Tax) Act, 1941 was amended. The definition of "sale" in Section 2(g)(iii) was amended to include, inter alia, any 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 was for cash, deferred payment or other valuable consideration, and such delivery, transfer or supply of any goods was deemed to be a sale of those goods by the person making the delivery, transfer or supply and a purchase of those goods by the person to whom such delivery, transfer or supply was made. Section 26-A was also inserted into theValidation and exemption. - (1) For the purposes of this Act, every transaction by way of supply of the nature referred to in sub-clause (ii) of clause (g) of Section 2 shall be deemed to be, and shall be deemed always to have been, a transaction by way of sale, with respect to which the person making such supply is the seller and the person to whom such, supply is made, is the purchaser; and notwithstanding any judgment, decree or order of any court, tribunal or authority, no imposition of tax on any such transaction before the coming into force of Section 3 of the West Bengal Taxation Laws (Second Amendment) Act, 1983, shall be deemed to be invalid or ever to have been invalid, and accordingly -(i) all the aforesaid taxes levied or collected or purporting to have been levied or collected under this Act shall be deemed always to have been validly levied or collected in accordance with this Act;(ii) no suit or other proceeding shall be maintained or continued in any court or before any tribunal or authority for the refund of, and no enforcement shall be made by any court, tribunal or authority of any decree or order directing the refund of, any such tax which has been collected;(iii) recoveries shall be made in accordance with the provisions of this Act of all amounts which would have been collected thereunder as tax as aforesaid if this section had been in force at all material times(2) Notwithstanding anything contained in sub-section (1), any supply of the nature referred to therein shall be exempt from the aforesaid tax -(a) where such supply has been made, by any restaurant or eating house (by whatever name called), at any time on or after the 7th day of September, 1978 and before the commencement of Section 3 of the West Bengal Taxation Laws (Second Amendment) Act, 1983 and the aforesaid tax has not been collected on such supply on the ground that no such tax could have been levied or collected at that time; or(b) where such supply, not being any such supply by any restaurant or eating house (by whatever name called), has been made at any time on or after the 4th day of January, 1972 and before the commencement of Section 3 of the West Bengal Taxation Laws (Second Amendment) Act, 1983 and the aforesaid tax has not been collected on such supply on the ground that no such tax could have been levied or collected at that timeProvided that the burden of proving that the aforesaid tax was not collected on any supply of the nature referred to in clause (a) or, as the case may be, clause (b) shall lie on the person claiming the exemption under this sub-section.On 24-8-1981, the appellant moved a writ petition under Article 226 of the Constitution alleging that it was not liable to pay a sales tax in view of the aforesaid judgment of the Supreme Court in Northern India Caterers (India) Ltd. The High Court issued a rule nisi on the writ petition and passed an order of injunction restraining the Sales Tax Officer from proceeding with the aforesaid certificate cases. The writ petition was ultimately transferred to the West Bengal Taxation Tribunal. The Tribunal following its decision in the case of Nimai Chandra Guin v. CTO (W.B.T.T.)) dismissed the writ petition in view of the amended definition of "sale" given in Section 2(g) of the Bengal Finance (Sales Tax) Act with retrospective effect. It was, however, pointed out by the Tribunal that the petitioners case came in clause (a) of sub-section (2) of Section 26-A of the Act. Therefore, the petitioner was entitled to tax exemption from 7-9-1978 till the coming into force of Section 3 of the West Bengal Taxation Laws (Second Amendment) Act, 1983. However, in order to take advantage of this provision, the petitioner must prove that it did not collect sales tax during the period in question

Reasoning:
9. This contention of Mr. Sanyal must fail for two reasons. The question of constitutional validity of Section 26-A was not raised before the Tribunal and cannot be agitated in appeal against the order of the Tribunal. In any event the allegation that an invidious and irrational distinction has been made between a hotel and a restaurant is without any merit. The judgment in the case of Associated Hotels of India Ltd. was delivered on 4-1-1972. After this judgment, sales tax could not be levied by the Revenue nor collected by the hotel on sale of foodstuff when such sale constituted part of the services rendered by it to its residents. Therefore, even though the levy was validated retrospectively by sub-section (1) of Section 26-A, exemption from payment of tax on such sales was given by clause (b) of sub-section (2) of Section 26-A from the date of that judgment to the date of the passing of the Amendmentthe Associated Hotels case did not deal with sales made by a restaurant. The retrospective operation of the Act is bound to affect many taxpayers prejudicially in many different ways. But that will not make the provision unconstitutional. The Legislature has decided to grant relief to two classes of taxpayers from the burden of this retrospective levy of tax. For this purpose, it has drawn a justifiable distinction between hotels and restaurants and has decided to grant exemption to them from two separate dates based on two separate judgments of thisIn our opinion, the Legislature has made a valid classification for the purpose of granting exemption to hotels and to restaurants on the basis of the two dates of the aforesaid two judgments