Home Case Index All Cases VAT and Sales Tax VAT and Sales Tax + HC VAT and Sales Tax - 2019 (5) TMI HC This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2019 (5) TMI 804 - HC - VAT and Sales TaxPayment of tax by hotels, restaurants and sweet-stalls - scope of Section 3-D of the TNGST Act - petitioner is one selling food and drinks at "any other eating house" - TNGST Act - HELD THAT:- Section 3-D of the TNGST Act forms part of a fiscal statute and there is no room for adding words or phrases in the statutory provision. The first requirement for Section 3-D(1) of the TNGST Act to apply is the total turnover of the dealer should not be less than twenty five lakhs of rupees. The second aspect is that the provision stands attracted on the first point of sale - for being entitled to the concessional rate of tax at 2%, the first point of sale of food and drinks should be in a hotel or in a restaurant or in a sweet stall orany other eating houses. Therefore, what is contemplated is sale of food and drinks in these named establishments and “any other eating houses” cannot be read disjunctively, but to be read conjunctively along with hotels, restaurants and sweet stalls. This is more so because Section 3-D of the TNGST Act deals with payment of tax by hotels, restaurants and sweet stalls. Section 3-D of the TNGST Act does not state any other eating house but this is found in Subsection (1) of Section 3-D. Therefore, necessarily the interpretation for the words "any other eating houses" should be tandem with with a hotel, a restaurant or a sweet stall - The point of first sale is to the establishment which has set up the facility for its employees or the people who visit the establishment such as shopping malls. Therefore, the petitioner would not stand qualified for concessional rate of tax under Section 3-D(1) of the TNGST Act. The second limb of argument is based upon the amended Section 3-D of the TNGST Act which came into effect from 01.04.2002. Admittedly, the assessment years under consideration in these cases are 2002-2001 and 2001- 2002. Therefore, the amended Section 3-D of the TNGST Act would have no application to the cases on hand. There are several features which have been added in the amended Section 3-D, as it originally stood related only to the sale of food and drinks in the establishments named therein. Whereas the amended Section 3-D deals with sale of ready to eat unbranded foods including sweets, savouries, unbranded non-alcoholic drinks and beverages. The amended provision also includes serving in or catered indoors or outdoors by hotels, restaurants, sweet stalls, clubs, caterers and any other eating houses other than those falling under item 29 of Part C of the First Schedule. Thus there is entire change in the scheme as provided under the amended Section 3- D(1) of the TNGST Act and this is one more reason to hold that the amended provision cannot be retrospective or retroactive prior to 01.04.2002. The petitioner cannot rest his case based on the clarifications which were issued much prior to the amendment and those clarifications were assessee specific and does not bind the Court. Thus, the three main issues which we had taken up for consideration have to be decided against the petitioner - the questions of law framed for consideration have to be answered against the petitioner/assessee. The tax case revisions are dismissed and the substantial questions of law framed for consideration are answered against the petitioner/assessee.
|