JUDGMENT Rajes Kumar, J.
1. These two revisions under Section 11 of U.P. Trade Tax Act (hereinafter referred to as "Act") are directed against the orders of Tribunal dated 13.11.1996 relating to the assessment years 1981-82 and 1982-83 respectively.
2. Applicant was running a Restaurant and a Bar. It is the claim of the applicant that he used to supply Food Stuff inside its Restaurant to its customers who came to its Restaurant to satisfy their hunger. It is also submitted that there was seating arrangement inside the Restaurant and customer were only authorised to eat inside the Restaurant and the customers had no right to take away the unconsumed portion and various other facilities namely music and cutlery etc. were provided to the customers. On these facts, the case was that Food Stuff provided to the customers inside the Restaurant, were in the nature of service and not sales. Assessing Authority, however, treated the supply of Food Stuff inside the Restaurant as sales. Applicant filed appeals before the Asstt. Commissioner (Judl.). Sales Tax. For the assessment year 1981-82, Appellate Authority rejected the appeal and confirmed the levy of tax. For the assessment year 1982-83, First Appellate Authority allowed the appeal and remanded back the matter to the Assessing Authority for fresh consideration. Against the order of First Appellate Authority, applicant filed two appeals before the Tribunal. Tribunal vide impugned order, rejected the appeal for the assessment year 1981-82 and allowed the appeal for the assessment year 1982-83. For the assessment year 1982-83, Tribunal remanded back the matter to the Deputy Commissioner (Appeal) to decide the appeal on merit and remand of the case had been held unjustified.
3. Heard Counsel for the parties.
4. Learned Counsel for the applicant submitted that the Tribunal has illegally held that after Constitution (Forty-Six Amendment) Act, 1982, and amendment in the definition of Section 2 (h) of the Act by U. P. Act no. 25 of 1985, the decision given by Apex Court in the case of Northern India Caterers (India) Ltd. v. Lt. Governor of Delhi reported in (42) STC, 396 and decision of this Court on the issue, has become meaningless, is erroneous. He submitted that the amendment was effective only from 03.2.1983 as held by this Court in the case of CST v. S/S Neera Hotel and Restaurant, Mirzapur reported in 1999 UPTC 96. He further submitted that the Tribunal has not examined the entire facts of the case that the Restaurant had sitting facility inside the Restaurant and supply of Food Stuff was only inside the Restaurant and the customers had no right to take away the unconsumed portion of Food Stuff and therefore, it was not sale but service and in support of its contention, he relied upon the decision of this Court in the case of Northern India Caterers (India) Ltd. v. Lt. Governor of Delhi (supra), Northern India Hotels Ltd. v. Commissioner of Sales Tax, U.P. Lucknow reported in 55 STC page 68, Ashoka Hotel v. Commissioner of Trade Tax reported in 1982 UPTC page 226, Chwla Restaurant v. Commissioner of Trade Tax, reported in 1982 UPTC page 779, CST v. Elchico, Allahabad reported in 1982 UPTC page 789, East India Hotel Ltd. v. Union of India, 2001 UPTC page 131. Learned Standing Counsel supported the order of Tribunal.
5. I find force in the argument of learned Counsel for the applicant. In my opinion, view of Tribunal that after the Forty-Sixth Constitutional Amendment and amendment in the definition of Section 2 (h) by U. P. Act no. 25 of 1985, decision given by Apex Court in the Northern India Caterers (India) Ltd. v. Lt. Governor of Delhi (supra) and the other decisions on the subject, has become redundant, is not correct. Forty-Sixth Constitutional Amendment and amendment of Section 2 (h) by U. P. Act no. 25 of 1985 have been considered by this Court with reference to the validation clause in the case of CST v. S/S Neera Hotel and Restaurant, Mirzapur reported in 1999 UPTC 1996. This Court held that after the decision of this Court in the case of Northern India Hotels Ltd. v. Commissioner of Sales Tax, U.P. Lucknow (supra) case, U.P. Sales Tax Act (Amendment and Validation) Act, 1985 was introduced and it is clear that the State of U. P. did not want to reopen the issue prior to the period 03.2.1983, This Court also held that the supply of Food Stuff inside the Restaurant prior to the period 03.2.1983 as a service and confirmed the order of Tribunal in this regard.
6. So far as view of Tribunal that the applicant has not maintained proper books of account and no service charge had been charged and it appeals that the main object was of supply of Food Stuff and rendering service was incidental is not sustainable. Non maintenance of proper books of account and non charging of service charges, is not very material for coming to the conclusion that whether the supply of Food Stuff inside the Restaurant was a service or a sale. What has to be seen is whether, the supply of Food Stuff inside the Restaurant was to the persons who came to satisfy their hunger and whether the customers had right to take away the unconsumed portion and whether the various facilities namely Table, Chair, Cutlery etc. were provided to the customers and the main object was to render service or to sell Food Stuff. These aspects of the matter has not been considered in the light of law laid down by this Court and Apex Court in this regard, therefore, in my opinion, matter requires reconsideration. Matter is sent back to the Tribunal to decide the appeals afresh in the light of observations made above.
7. In the result, both the revisions are allowed. Orders of Tribunal are set aside and the matters are remanded back to the Tribunal to decide the appeals afresh.