TMI Blog2020 (8) TMI 780X X X X Extracts X X X X X X X X Extracts X X X X ..... ous Endowment Department dated 22.04.1996 - The introduction of Entry 150 pre-dated the 46th amendment to the Constitution of India pursuant to which Sub-clause (29-A) was incorporated under Article 366 to the constitution of India, w.e.f. 02.02.1983. By virtue of the aforesaid amendment, the definition on tax of sale or purchase of goods was for first time introduced in the Constitution. Sub-Clause (f) to the Clause (29-A) to Article 366 introduced 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 any drink (whether or not intoxicating), where such supply or service, is for cash, deferred payment or other valuable consideration and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has challenged the impugned G.O.(Ms).No.107 dated 02.08.2016 rejecting the request of the petitioner for waiver of sales tax for the period between 03.02.1983 and 31.01.1985 covering the Assessment Years 1983-84 1984-85. 2.Vires of Entry No.150 of the First schedule to the Tamil Nadu General Sales Tax Act, 1959 (TNGST) was challenged. Entry 150 of the First schedule to the TNGST Act, 1959, w.e.f. 04.10.1980 reads as under:- Articles of food and drinks sold to customers in three star, four star and five star hotels, as recognised by Tourism Department, Government of India whether such articles are meant to be consumed in the premises or outside. 3.The said Entry sought to levy of sales tax for the first time on the sale of f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t in Sangu Chakra Hotels Private Limited (supra) and when the Entry 150 was eventually upheld by the Hon'ble Supreme Court. 7. Pursuant to the above directions of the Hon'ble Supreme Court, G.O.Ms.No.140, dated 11.06.1999 was issued. It granted the waiver of interest to the petitioner for the period between 01.02.1985 and 24.03.1989. It prescribed conditions, i.e. Hoteliers should not have collected tax from the customers. 8. The petitioner was thereafter issued with notice dated 30.11.1999. The petitioner was called upon to produce documents to substantiate that it had not collected tax on the sale of food drinks for the period between 1981-82 and 1984-85 upto 31.01.1985. The petitioner replied to the same and furnished cer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2. (b) On verification, if no tax has been collected by the assessee on food and drinks for the period from 18.03.1981 to 02.02.1983, then the assessments made already on food and drinks levying tax are deemed to be quashed and therefore, the assessing authority has to make fresh assessments by exempting the food and drinks turnover and raising fresh demands, if any. However, if any tax has been collected by the assessee on food and drinks from 18.03.1981 to 02.02.1983, then the assessments made already are valid, and this position may be informed to the assessee. (c) For the period from 03.02.1983 to 31.01.1985, on the sales of food and drinks the assessee is liable to tax, whether tax has been collected or not. (d) However, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .04.2006. 13. I have considered the arguments of the learned counsel for the petitioner and the learned counsel for the respondents. 14. It is the case of the petitioner that it has not collected tax for the period between 03.02.1983 and 31.01.1985, and therefore its case should be considered favourably. 15. The impugned G.O. has been passed merely based on records, but without any discussion on the representation of the petitioner and the communication of the principal secretary/Commissioner of Commercial tax in G.O.Ms.No.157, Commercial Taxes and Religious Endowment Department dated 22.04.1996. 16. The introduction of Entry 150 pre-dated the 46th amendment to the Constitution of India pursuant to which Sub-clause (29-A) was in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the petitioner had also been given the exemption for the between 01.02.1985 and 24.03.1989 during the period when Entry 150 was declared as ultravires, is a factor to be considered by the 1st respondent while passing orders if indeed the petitioner had not collected tax. 19. The plea of the petitioner that it should be granted waiver therefore deserves a fresh consideration by the 1st respondent even though during the period in dispute, the 46th amendment to the Constitution had come into force w.e.f. 02.02.1983. If the petitioner had not collected tax from the customer, it may be considered by the 1st respondent. 20. Since the impugned G.O has been passed without considering the submission of the petitioner, I therefore direct the 1s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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