TMI Blog2015 (12) TMI 1086X X X X Extracts X X X X X X X X Extracts X X X X ..... Raj Mullick, Advocate ORDER V.K. Bist, J. These two revisions have been filed against the common judgment and order dated 23.X.2009 passed by the Commercial Tax Tribunal, Uttarakhand in Second Appeal No. 12/2005 (A.Y. 1998-99) and 13/2005 (A.Y. 1999-2000), and this Court has to deal with a common question of law and, therefore, for the sake of convenience, both the revisions are consolidated and are being decided by a common judgment. 2. Brief facts of the case, shorn of unnecessary details, are as follows:- A survey of 2nd respondent/M/S Dehradun Club Limited was carried out by Special Investigation Branch of the then Trade Tax Department, in which it revealed that a contract was entered in between 2nd respondent and the revisionist/assessee in respect of supply of cooked food. Initially, the contract was for 3 months from 02.12.1994 and the contract was with one Surendra Singh Bisht, and from 01.12.1996 to 25.07.2000, the contract was with the revisionist, and thereafter, it was given to some other person. The assessing authority by invoking Section 7(3) of U.P. Trade Tax Act, 1948 (hereinafter referred to as the Act), passed assessment order, which was based up ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fact that the sale order was with the name of Dehradun Club and the sale consideration is received by Dehradun Club through its employee? 5. Counsel for the revisionist contended that the place of business is owned by 2nd respondent; the kitchen and the appliances belonged to it; the waiters and other employees of kitchen are its employees; the order is placed in its name and the purchasers/consumers are also its members. The sale consideration is received by 2nd respondent. Further, bills were issued by the assessee/ revisionist on behalf of 2nd respondent, however, payment was always received by 2nd respondent and after deducting all the amount, made the balance payment to the assessee/ revisionist, which is nothing but his job-charge as well as the cost of the raw material, which is purchased on behalf of 2nd respondent. It is submitted that thus, from these ingredients, it reflects that 2nd respondent is the manufacturer, as defined under Section 2 (ee) of Trade Tax Act, therefore, the authorities below erred in law in holding that the assessee/revisionist is liable to pay tax in lieu of sale effected in respect of 2nd respondent. He contended that as per the findings of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ers, who are his members and also received the sale consideration, therefore liability to pay tax is on 2nd respondent. He contended that the assessee has no control over the sale made to the consumers, therefore the assessee cannot be made liable to pay tax. Lastly, he submitted that the revisionist received the amount for his expenses for purchasing raw materials besides his wages; rest was deducted by 2nd respondent. 6. Per contra, learned counsel for the 2nd respondent contended that 2nd respondent/ M/S Dehradun Club Limited is a limited company, and according to memorandum of association of the Club, the relevant objects, inter-alia, includes: (a) to afford to its members all the usual privileges, advantages, conveniences and accommodations of the club; (b) to promote social intercourse and to provide entertainments and healthy recreations for its members; (c) to join, amalgamate or reciprocate with any other club or association, whether incorporated or not, intended for the promotion of new objects in which the club is interested, and (d) the club incorporated under Indian Companies Act, as a Limited Company/ Association formed for those purpose, and not for gains. He cont ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the messing contractor and the 2nd respondent has only been reimbursed for commission @ 12 per cent on sales, covering the usages of utilities provided to the messing contractor. 8. Learned Brief Holder appearing on behalf of the Department, on the other hand, submitted that the tax liability is accepted to both the contesting parties and it is only upon them to decide as to on which of the parties, the tax liability rests, either on the assessee or on 2nd respondent. He refrained to contend on the merits and de-merits of the case. 9. While examining facts of the case, we first found the case of revisionist correct as respondent no.2 entered the sale in their book of account, which is always done by an assessee. But, when we minutely went through the facts of the case, we realised that it is the revisionist who is actually carrying out the business in the premises of respondent no.2. Profit is always with sale and in the present case, the entire money has been received by sale and was given to revisionist, after deducting 12 per cent. Thus, it is the revisionist, who earned profit from sale and, therefore, has rightly been assessed. In such circumstances, if respondent no.2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s-examine. Both the parties agreed deduction of 12% commission. The role of the N.S. Bisht is not a employee of Dehradun Club or as job worker, because Sri N.S. Bisht did not get any salary, perquisite like that of employees, and from raw material to the supply of the cooked food was done by the N.S. Bisht and the risk of the quality of the food was also N.S. Bisht, so his role was not of employee doing the job work. So clearly as the purchase of raw material and after supply on producing the bills and receiving the payment, the procedure reveals that N.S. Bisht supply the cooked food and received the payment. In the present case Sri N.S. Bisht have done the job of purchase, manufacture and sale on the basis of oral agreement. Dehradun club is a group of members, and consumer of cooked food. For all process Sri N.S. Bisht have accepted not maintaining any accounts, whereas Dehradun Club have produced the regular account book, audit report and the true photo copy of the fourth night bills produced by contractor. The Dehradun Club made available the facility of kitchen, dining, KOT etc. to contractor. The payment received by N.S. Bisht from the sale of the cooked food i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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