TaxTMI 
TaxTMI 
1989 (12) TMI 306
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....of the Division Bench of the High Court of Punjab and Haryana in L.P.A. Nos. 444 and 445 of 1982, dismissing the appeal preferred by the appellant against and affirming the orders dated January 13, 1983, of the learned single Judge in Civil Writ Petitions Nos. 2054 and 2170 of 1982. By those writ petitions, the respondents assailed the orders of assessment to sales tax under the Haryana General Sales Tax Act, 1973, bringing to tax a turnover of sales of articles of food said to have been sold by the respondents in their restaurants. 2.. Against the respective orders of assessment the respondents filed appeals provided for in the statute. Section 39(5) of the Act contemplates that no appeal shall be entertained unless it is filed within six....
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....tions assessed to sales tax were in fact services rendered by the respondent-restaurants to their customers and did not constitute sale of articles of food. The High Court entertained the writ petition and upon a reappreciation of the facts proceeded to hold that the transactions did not constitute sales but were mere transactions of service. In these appeals the permissibility of such a reassessment of the evidence by the High Court at a stage where appeals were the appropriate remedy and where in fact such appeals had been filed, is assailed. Learned counsel for the Revenue urged that the question whether supply of articles of food and drinks to a customer in a hotel constitute sale of goods invoking a transfer of the property in the good....
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....re, is whether in the transaction made by him, the purpose was providing entertainment and other services to the customers or the dominant factor was sale of foodstuffs. As already held by the Supreme Court in [1980] 45 STC 212, there may be high style restaurants or residential hotels rendering a bundle of special services like ball dance, rare music, 'viands of high regale', etc., as described by learned Judges in their above cited judgment. The establishment of the dealer does not answer the above description and cannot be considered to be of a high style restaurant providing services. It is an ordinary restaurant. I have paid a visit to the restaurant and have observed that the furniture and crockery provided in the restaurant is of an ....
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....oviding such amusement/entertainment to the customer has to satisfy his bodily wants and amounts charged for satisfying such bodily wants are nominal as compared to the charges of services and providing amusement, etc. No such thing is, however, found in his restaurant..." 4.. The constitutional validity of the provisions in sub-section (5) of section 39 of the Act was not assailed in the writ petition. Similar provisions, accompanied by similar proviso, have been held valid. At the stage at which the respondents approached the High Court, what the respondents could have, if the facts so justified, assailed was the question of the refusal of the appellate authority to exercise the discretion under the proviso. When an hierarchy of appeals ....
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....tial facts based on primary facts found by the statutory authorities. But what was assailed in review was, in substance, the correctness-as distinguished from the legal permissibility-of the primary or perceptive facts themselves. It is, no doubt, true that if a finding of fact is arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant material or if the finding so outrageously defies logic as to suffer from the vice of irrationality incurring the blame of being perverse, then, the finding is rendered infirm in law. But here what was assailed was the correctness of findings as if before an appellate forum. Judicial review, it is trite, is not directed against the decision but is confined to the deci....
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....appellate authorities to exempt respondents from the deposit of the assessed tax as a precondition to the entertainability of the appeals was unsupportable and that in their present straitened financial circumstances it will not be possible for the respondents to avail themselves of the right of appeal. 7.. It appears to us that having regard to the circumstance that we are considering this matter after lapse of several years it would neither be necessary nor appropriate to remit the matter to the High Court to examine the question whether the refusal of the appellate authorities to give to the respondents a benefit of the proviso to section 39(5), legal or not. It appears just that the respondents should be enabled to have the benefit of ....