TaxTMI 
TaxTMI 
1978 (9) TMI 154
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....as delivered by HARDAYAL HARDY, J.-The following two questions of law have been referred to this Court under section 21(3) of the Bengal Finance (Sales Tax) Act, 1941, as extended to the Union Territory of Delhi: "(1) Whether the supply of meals by the petitioner to the residents, who pay a single all-inclusive charge for all services in the hotel, including board, if they desire to partake of it, without entitling them to a rebate, if they miss it, is taxable under the Bengal Finance (Sales Tax) Act, 1941, as extended to the Union Territory of Delhi. (2) Whether the service of meals to casual visitors in the restaurant is taxable as sale (i) when the charges are lump sum per meal, or (ii) when they are calculated per dish." The petitioner has been running a hotel in which lodging and meals are provided on "inclusive terms" and meals are also served to non-residents in the restaurant. For the assessment year 1957-58 the petitioner was assessed to sales tax and an additional demand of Rs. 2,988.28 was created against it. The petitioner's contention was that there was no element of "sale" in serving food along with other amenities provided to customers and....
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..... The application is accordingly dismissed. The assessee appealed to the Supreme Court. F.S. Nariman, Senior Advocate (in C.A. No. 1768 of 1972), V.S. Desai, Senior Advocate (in C.A. No. 1769 of 1972) and M.C. Bhandare, Senior Advocate (in C.A. No. 1768 of 1972) (Mrs. S. Bhandare and Miss M. Poduval, Advocates, with them), for the appellants. P.A. Francis, Senior Advocate (R.N. Sachthey and Miss A. Subhashini, Advocates, with him), for the respondent. Y.S. Chitale, Senior Advocate (Vinay Bhasin, A.K. Srivatsava and Vineet Kumar, Advocates, with him), for the interveners. JUDGMENT The judgment of the Court was delivered by PATHAK, J .-This and the connected appeal are directed against the judgment of the High Court of Delhi disposing of a reference made to it under section 21(3) of the Bengal Finance (Sales Tax) Act, 1941, as extended to the Union Territory of Delhi on the following question: "Whether the service of meals to casual visitors in the restaurant is taxable as a sale (i) when the charges are lump sum per meal, or (ii) when they are calculated per dish." The High Court has answered the question in the affirmativ....
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....s Laws of England, 3rd Edn., Vol. 21, page 442, para 932. It was hospitality that he offered, and the many facilities that constituted the components of that hospitality determined the legal character of the transactions flowing from them. Long ago, in Crisp v. Pratt (1639) Cro. Car. 549., it was pointed out that innkeepers do not get their living by buying and selling, and that although they buy provisions to be spent in their house, they do not sell them but what they do is to "utter" them. "Their gain", it was added, "is not only by uttering of their commodities, but for the attendance of their servants, and for the furniture of their house, rooms, and lodgings, for their guests This test went to the root, and we find it repeated in Parker v. Flint (1699) 12 Mod. Rep. 254. In Newton v. Trigg(1691) 3 Mod. Rep. 327., Holt, C.J., defined the true status of an innkeeper by reference to the services afforded by him, that he was an "hospitator", and was "not paid upon the account of the intrinsic value of his provisions, but for other reasons: the recompense he receives, is for care and pains, and for protection and security but the end of an innkeeper in his buying, is not to sell, b....
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....ames W. Hodson L.R.A. 1915-B481., from which the statement has been derived. Holding that the supply of food or drink to customers did not partake of the character of a sale of goods, the court commented: "The essence of it is not an agreement for the transfer of the general property of the food or drink placed at the command of the customer for the satisfaction of his desires, or actually appropriated by him in the process of appeasing his appetite or thirst. The customer does not become the owner of the food set before him, or of that portion which is served for his use, or of that which finds a place on his plate or in side dishes set about it. No designated portion becomes his. He is privileged to eat, and that is all. The uneaten food is not his. He cannot do what he pleases with it. That which is set before him or placed at his command is provided to enable him to satisfy his immediate wants, and for no other purpose. He may satisfy those wants; but there he must stop. He may not turn over unconsumed portions to others at his pleasure, or carry away such portions. The true essence of the transaction is service in the satisfaction of a human need or desire,-ministry to a....