TMI Blog1975 (11) TMI 151X X X X Extracts X X X X X X X X Extracts X X X X ..... of running hotels. One of the hotels run by it is the Oberoi Inter-Continental Hotel in New Delhi, hereinafter referred to as the hotel. For the purposes of the Act the hotel is registered as a "dealer". The hotel in the course of its business has five specific activities, namely, (a) provide boarding and lodging on consolidated charges to guests with no rebate being given if meals are not taken; (b) provide purely lodging to guests who have to pay separately for meals; (c) running of five restaurants which serve meals and drinks; (d) running of three bars; and (e) arranging banquets, parties, receptions, etc., in rooms specially meant for such functions with or without serving of refreshments, a consolidated charge being made per head or otherwise for the function organised with no separate charge for refreshments served, described as "banquet charges". Apart from the aforesaid five activities the hotel also runs a cafeteria in the basement where subsidised refreshments are made available to its employees at no-profit-no-loss basis. The hotel also offers and gives trade discounts to its regular customers in pursuance of agreement entered into with them. For the assessment yea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s dismissed and a revision against that order is pending. In the meanwhile, the impugned notice has been issued for suo motu revision of the order of assessment made by the Sales Tax Officer. Section 20(3) of the Act reads as under: "(3) Subject to such rules as may be prescribed and for reasons to be recorded in writing, the Commissioner upon application or of his own motion may revise any assessment made or order passed under this Act or the Rules thereunder, by a person appointed under section 3 to assist him, and subject as aforesaid, the Chief Commissioner may, in like manner, revise any order passed by the Commissioner." The first contention on behalf of the petitioner is that so far as the banquet charges are concerned the order of the assessing authority has merged in the order of the Assistant Commissioner, the appellate authority, and inasmuch as the order of the Assistant Commissioner is not revisable under section 20(3), the impugned notice vis-a-vis the banquet charges is without jurisdiction. The Commissioner, it is urged, is not seeking to revise the appellate order but the original assessment order by the Sales Tax Officer and this is not permissible in law. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ance of the decision of the tribunal by the appellate authority the original decision merges in the appellate decision and it is the appellate decision alone, which subsists and is operative and capable of enforcement. In my view, this rule could be attracted here also. The question that now arises is that whether the impugned notice of the Additional Commissioner is competent or is without jurisdiction. The impugned notice vis-a-vis banquet sales speaks of the assessment order by the assessing authority and not of the appellate authority. Inasmuch as there is now no assessment order vis-a-vis banquet sales, the impugned notice in this behalf must be held to be without jurisdiction and illegal. The Commissioner cannot revise something which does not subsist. It is not said in the impugned notice that he seeks to revise the appellate order, although under section 20(3) he had the power to revise the assessment made or any other order passed under the Act. The impugned notice is, accordingly, quashed in respect of the banquet sales. I now come to the question of cafeteria sales mentioned in the impugned notice: as to whether this aspect is within the competence of the Commissioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o. Ltd. v. State of Orissa[1975] 35 S.T.C. 195., the Orissa High Court took a somewhat different view. On behalf of the petitioner it is urged that unless there is a profitmotive the sales in cafeteria would not convert the hotel into a "dealer" vis-a-vis cafeteria activity. Mr. Bhandare, appearing for the respondents, contends otherwise and submits that, in view of there being a conflict of judicial opinion, there was nothing wrong in the Commissioner issuing the impugned notice and taking any particular view that he may after hearing the petitioner. This contention on behalf of the respondents runs counter to what is pleaded in paragraph 11 of the affidavit filed by way of return. It seems the department is firmly of the view that not only the quantum of add back amount but the liability for payment of tax or the incidence of tax is attracted. In my view, looking at the definition of "dealer " in section 2(c), the hotel cannot be regarded as a "dealer" qua the cafeteria activity on the admitted fact that there was no profit-motive in effecting sales in cafeteria to employees of the hotel on subsidised rates Therefore, unless qua this activity the hotel is a "dealer", there will ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 922., it was held that before a question of jurisdiction of a tribunal is raised before the High Court on a petition for a writ under article 226 of the Constitution of India, objection to jurisdiction must be taken before the tribunal whose order is being challenged. This cannot be accepted as a universal rule. Where the objection is to the basic jurisdiction of a tribunal, either on question of law or on consideration of jurisdictional facts, the objection to jurisdiction can always be raised by way of writ petition. It is only a rule of not exercising discretion where a person has submitted to the jurisdiction of the tribunal without questioning its jurisdiction, which has prompted court to make observations as in the above Bombay case[1953] 55 Bom. L R. 922. Where, however, before submitting to the jurisdiction of the tribunal a party comes under article 226 of the Constitution challenging the jurisdiction of the tribunal or challenging the very right of the tribunal to initiate proceedings, judicial review is competent. The Act no doubt provides for alternative remedy of appeal and revision or a question of law being referred to the High Court, but, where the very initiatio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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