TMI Blog2023 (1) TMI 295X X X X Extracts X X X X X X X X Extracts X X X X ..... nd drinks provided for human consumption shall also be encompassed under the term 'sale'. The earlier Constitution Bench decision in THE JOINT COMMERCIAL TAX OFFICER, HARBOUR DIVISION II, MADRAS VERSUS YOUNG MEN S INDIAN ASSOCIATION, MADRAS AND OTHERS [ 1970 (2) TMI 87 - SUPREME COURT] had held that where supply of various preparations by clubs to members is involved, it shall not be sale, as there is no transfer of property from one to another. If the club even though a distinct legal entity is only acting as agent for its members in the matter of supply of various pre- parations to them and no sale would be involved as the element of transfer would be completely absent. The Apex Court further, while answering the question po ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o. 44 of 2008. Facts, in brief, are that the revisionist is a defence services club comprising of members and it was incorporated as a company. The club is being run on 'no profit no loss' basis and it supplied the foods and drinks to its members. An assessment was made by the assessing authority and assessment order was passed on 25.09.2007. The assessing authority held that the club was liable to be taxed for supplying the foods and drinks to its members. Against the order passed by the assessing authority, a first appeal was preferred and the first appellate authority remanded the matter to the assessing authority. Against the order of first appellate authority, a second appeal was preferred before the Commercial Tax Tribuna ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the assessee as it is a club, incorporated and is serving foods and drinks to its members and is running on no profit no loss basis, thus, it is not covered under the definition of 'sale' as envisaged under Section 2 (h) (V) and (VI). Sri Rishi Kumar, learned Standing Counsel, appearing for the State, has submitted that though the judgment rendered by the Apex Court in case of Calcutta Club Limited (Supra) has held that the judgment, earlier rendered in 1970, still holds the field and the provisions of Article 366 (29-A) (f) will not operate in the present case but the constitutional amendment has not been set-aside and is still in existence. He further contends that the word 'club' finds place in Section 2 (c) whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Amendment in the Constitution, the supply of foods and drinks to the members of the club were being taxed as sale in view of Article 366(29-A)(f). The question came up for consideration of Hon'ble Apex Court in case of Calcutta Club Limited (supra) , wherein the Apex Court clarified and held that doctrine of mutuality still continues to be applicable to both incorporated and unincorporated members' club, even after 46th Amendment in Article 336 (29-A) to the Constitution of India. The Apex Court further, while answering the question posed by the Division Bench, in Calcutta Club Limited (Supra) has held that the judgment rendered by the earlier Constitution Bench in the matter of Young Men's Indian Association (Supra) con ..... X X X X Extracts X X X X X X X X Extracts X X X X
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