TMI Blog2020 (5) TMI 501X X X X Extracts X X X X X X X X Extracts X X X X ..... in terms of section 7(1)(a) even if the petitioner did not actually intend to treat it as a part of its One Star Hotel business/service - if the petitioner had a separate kitchen and a separate dinning area for serving food to the guest staying in the rooms based for which the aforesaid One Star classification was obtained on 12.11.2009, the respondent would not be justified in clubbing the turnovers to demand tax under section 7(1)(a) of the Act. The finding of the respondent in the impugned orders that the services in the restaurant and the bar were interlinked with each other remains unsubstantiated - there are sufficient indications to the effect that after 2011, the Commercial Tax Department also wanted to treat the service provided by the petitioner to its guest staying in its hotel rooms/visiting the bar under One Star service and the food served in the restaurant differently from 2011. However, in absence of proper discussion on facts in the impugned order and adequate materials, any categorical finding on the same could not be delivered. Impugned orders are set aside and the cases are remitted back to the respondent to pass fresh orders for the respective assessment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stration in TIN No. 3382242419. 9. It is the case of the petitioner that the petitioner started a hotel business and obtained a registration in TIN No. 3382242419 from the respondent on 19.5.2008 for sale of food in the restaurant to cater to the demand of the transit passengers as the hotel was centrally located in the busy area right opposite the Pollachi Muffusil Bus Stand in a cluster location having several shops, private concerns and government offices in the vicinity. 10. It is submitted that the petitioner later also obtained a separate registration in TIN No. 3321224280 for the bar attached to the Hotel for lodging with 34 rooms on 13.06.2011. 11. For running the aforesaid hotel with 34 rooms, the petitioner also obtained a separate Star Classification Order on 12.11.2009 which was to be in force for a period of 5 years subject to the condition that the management of the hotel should at all times comply with all the statutory regulations and conditions for classification/3 classification of the hotels and other terms and conditions to be introduced by the Department of Tourism, India Tourism (Chennai), Southern Regional Office, Chennai 600002. 12. The petitione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the petitioner was vending food as One Star Hotel from the premises for which it had obtained a separate registration in TIN No. 3382242419 in May, 2008. 20. The learned counsel for the petitioner relied on the following decisions of this court:- (i) Hotel Shakthi (Restaurants) versus CTO, order dated 8.6.2016 in W.P.No. 26512-14 of 2014; (ii) JK M Graphics Solutions Private Limited versus CTO, order dated 1.3.2017 in W.P.No. 105 of 2016; (iii) Cadbury India Limited versus Asst Commissioner (CT) Fast- Track Assessment Circle in W.P.No. (2012)1 VST130 (Mad). 21. The learned counsel for the respondent submits that the question of change of opinion under TNVAT Act, 2006 is in existence with the provisions has it is framed. He submits that under Section 22 of the TNVAT Act, 2006 the relevant period and thereafter with effect from 19.06.2012 there is a merely deemed assessment and the Assessing Officer accepts the return filed by a registration deemed and passed an assessment order and thereafter, the powers are vested of the assessing officer to reopen the assessment under Section 22 of the TNVAT Act. 22. In case of escaped turnover and wrongly availment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ervices under the provisions of the Tamil Nadu tax on Luxuries In Hotels And Lodging Houses Act, 1981. 30. Thereafter, the petitioner also obtained One Star Classification Order on 12.11.2009. On 13.6.2011, the petitioner obtained a separate registration for running the bar in the first floor of the same building. According to the petitioner there is no connect between the restaurant and the bar/room services provided by the petitioner. 31. As per the guidelines of the Government of India Department of Tourism dated 24.3.2003 for One Star classification/certificate, the petitioner was required to comply with the following requirements:- CHECKLIST FOR FACILITIES SERVICES 1* 2 * 3* 4* 5*/5* D Comments Public Areas A lounge or seating in the lobby area N N N N N Size would depend on check in pattern. There should be at least one telephone no higher than 24'' from floor level in 5/5D* ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... N N N N Plastic ware accepted in pool area Silverware N Bar N N If permitted by local laws Kitchens Refrigerator with deep freeze N N N N N Capacity based on size of F B service Segregated storage of meat, fish and vegetables N N N N N Meats fish in freezers, vegetables must be separate. Tiled walls, non-slip floors N N N N N Head covering for production staff N N N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the petitioner independent of the restaurant with the kitchen for which the petitioner had obtained registration earlier on 19.05.2008 vide TIN No.3382242419. 35. In my view, if the petitioner had shown the kitchen meant for the restaurant for obtaining One Star registration/classification order on 12.11.2009, certainly the petitioner would be liable to pay tax in terms of section 7(1)(a) even if the petitioner did not actually intend to treat it as a part of its One Star Hotel business/service. 36. On the other hand, if the petitioner had a separate kitchen and a separate dinning area for serving food to the guest staying in the rooms based for which the aforesaid One Star classification was obtained on 12.11.2009, the respondent would not be justified in clubbing the turnovers to demand tax under section 7(1)(a) of the Act. 37. The finding of the respondent in the impugned orders that the services in the restaurant and the bar were interlinked with each other remains unsubstantiated. 38. In my view, there are sufficient indications to the effect that after 2011, the Commercial Tax Department also wanted to treat the service provided by the petitioner to its guest stay ..... X X X X Extracts X X X X X X X X Extracts X X X X
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