TaxTMI 
TaxTMI 
TaxTMI 
2015 (12) TMI 1086
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....tract was entered in between 2nd respondent and the revisionist/assessee in respect of supply of cooked food. Initially, the contract was for 3 months from 02.12.1994 and the contract was with one Surendra Singh Bisht, and from 01.12.1996 to 25.07.2000, the contract was with the revisionist, and thereafter, it was given to some other person. The assessing authority by invoking Section 7(3) of U.P. Trade Tax Act, 1948 (hereinafter referred to as the Act), passed assessment order, which was based upon the amount received by the revisionist. The revisionist was assessed to the tax liability of Rs. 1,76, 750/- and Rs. 1,45,750/- respectively for the assessment years 1998-99 and 1999-2000. Two appeals were filed by the assessee and the First Appellate Authority vide order dated 22.09.2001 allowed both the appeals, set-aside the assessment order and remanded the matter to the assessing authority for fresh assessment. Against the first appellate order, the revisionist had filed appeals, which were allowed and the revisionist was declared non-assessable. Against the Tribunal's judgment, the 2nd respondent invoked writ jurisdiction and this Court, while allowing the petition of 2nd responde....
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....but his job-charge as well as the cost of the raw material, which is purchased on behalf of 2nd respondent. It is submitted that thus, from these ingredients, it reflects that 2nd respondent is the manufacturer, as defined under Section 2 (ee) of Trade Tax Act, therefore, the authorities below erred in law in holding that the assessee/revisionist is liable to pay tax in lieu of sale effected in respect of 2nd respondent. He contended that as per the findings of First Appellate Authority, the payment is made to the assessee by 2nd respondent through cheques and the cash memos and KOT are also in the name of 2nd respondent. It is submitted that as per findings of First Appellate Authority, there were two types of sales, one was credit sale i.e. the major sale and another was cash sale. He submitted that admittedly, the 2nd respondent realised the credit sale in their account and also the cash sale, and on submission of bills, payment was made to the assessee by 2nd respondent, through cheques. Further, while making payment to the assessee, the 2nd respondent deducted 12 per cent commission + water charges + electricity charges + salary of staff and after deducting all these expenses,....
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....accommodations of the club; (b) to promote social intercourse and to provide entertainments and healthy recreations for its members; (c) to join, amalgamate or reciprocate with any other club or association, whether incorporated or not, intended for the promotion of new objects in which the club is interested, and (d) the club incorporated under Indian Companies Act, as a Limited Company/ Association formed for those purpose, and not for gains. He contended that 2nd respondent had engaged a messing contractor, namely, Surender Singh Bisht, and accordingly, a messing contract was entered on 08.12.1994 and reduced in writing on 08.04.1995, which was periodically extended upto 21st February, 2001, on the same covenants mentioned in the contract, but this messing contractor, had for some intermittent period, sub-let the contract to his brother i.e. the revisionist. As per the contract, the messing contractor was purchasing raw materials and using the kitchen/equipments of the 2nd respondent and was serving the prepared food to the members of the club. The 2nd respondent, on its part, was realising 12 per cent commission against the messing bills on account of usage of utilities, provid....
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.... went through the facts of the case, we realised that it is the revisionist who is actually carrying out the business in the premises of respondent no.2. Profit is always with sale and in the present case, the entire money has been received by sale and was given to revisionist, after deducting 12 per cent. Thus, it is the revisionist, who earned profit from sale and, therefore, has rightly been assessed. In such circumstances, if respondent no.2 is compelled to pay tax on sale, grave injustice would be done to him. 10. We also find that while partly allowing the appeals filed by the assessee, the First Appellate Authority reduced the taxability of the assessee, holding that the assessee has done the job of purchase, manufacture and sale on the basis of oral agreement. Dehradun club is a group of members, and consumer of cooked food. The revisionist has accepted not maintaining any accounts, whereas 2nd respondent has produced the regular account book, audit report and the true photocopy of the fortnight bills produced by contractor. The 2nd respondent made available the facility of kitchen dining, kitchen order token etc. to the revisionist. On the ground of payment received by th....
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.... is a group of members, and consumer of cooked food. For all process Sri N.S. Bisht have accepted not maintaining any accounts, whereas Dehradun Club have produced the regular account book, audit report and the true photo copy of the fourth night bills produced by contractor. The Dehradun Club made available the facility of kitchen, dining, KOT etc. to contractor. The payment received by N.S. Bisht from the sale of the cooked food it is clear that Sri N.S. Bisht is the dealer so he is liable to pay tax." 11. The learned Commercial Tax Tribunal, sustaining the judgment and order of First Appellate Authority has held that though the fact that Menu card, cash memos and kitchen order token were in the name of Dehradun club remains uncontroverted either by the club or by the Department, but the nature of transaction and the consideration received against the food stuff served in the club to the members, clearly indicates that the club had nothing to do in such transactions except charging of 12 per cent in lieu of the facilities/infrastructure provided to the assessee. 12. Thus, by looking at the facts of the case, it is clear that the task of the club was, in fact, nothing except to ....