Expanded sale definition covers catering supplies, while exemption depends on proof that tax was not collected.

The article explains that the constitutional insertion of article 366(29A)(f) and the validating amendment to section 26A expanded the concept of sale to include supply of cooked food or drink for consideration, displacing the earlier view that such catering contracts were mere services or indivisible contracts. It also notes that exemption under section 26A(2)(b) is available only for caterer supplies during the specified period from 4 January 1972 until commencement of the amending provision, and only if the claimant proves that tax was not collected on those supplies. The burden of proving non-collection rests on the applicant, leaving the factual question to the assessing authority.

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Issues: (i) Whether the supply of cooked food and allied services by a caterer under the contractual arrangement constituted a sale exigible to sales tax under the Bengal Finance (Sales Tax) Act, 1941 as amended. (ii) Whether the exemption under section 26A(2) applied to the supplies made by the caterer, and if so, from what date, subject to the statutory burden of proof.

Issue (i): Whether the supply of cooked food and allied services by a caterer under the contractual arrangement constituted a sale exigible to sales tax under the Bengal Finance (Sales Tax) Act, 1941 as amended.

Analysis: The constitutional amendment introduced clause (29A)(f) in article 366, and the validating provision in section 26A gave retrospective effect to the expanded concept of sale in relation to supply of food or drink for valuable consideration. The Tribunal held that the earlier position under which such supply had been treated as a service or an indivisible contract stood displaced by the validating amendment. In the facts of a caterer supplying cooked food at the place chosen by the customer, the transaction fell within the amended notion of sale.

Conclusion: The supply was held to be exigible to sales tax.

Issue (ii): Whether the exemption under section 26A(2) applied to the supplies made by the caterer, and if so, from what date, subject to the statutory burden of proof.

Analysis: The Tribunal held that clause (b) of section 26A(2) governed supplies made by a caterer and not by a restaurant or eating house, so the relevant exemption period ran from 4 January 1972 until commencement of the amending provision. The exemption, however, was conditional upon proof that tax had not been collected on the relevant supplies, and that burden lay on the applicant. The Tribunal therefore left the factual determination of actual collection to the assessing authority.

Conclusion: The applicant was held to be eligible only for conditional exemption under section 26A(2)(b), subject to proof that no tax was collected.

Final Conclusion: The writ application was disposed of by holding the supplies taxable under the amended law, while directing the assessing authority to consider the statutory exemption claim and revise the assessments accordingly after giving the applicant an opportunity of hearing.

Ratio Decidendi: A validating amendment that expressly gives retrospective effect to an expanded statutory definition of sale can render supply of food by a caterer taxable, and any exemption under the saving provision remains available only if the claimant proves the non-collection of tax as required by the statute.

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