2020 (5) TMI 501

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....ugned orders, the respondent has confirmed demand of tax on the petitioner at 12.5% for the assessment year 2009-2010 to 2011- 2012 and at 14.5% for the assessment year 2012-2013 to 2014- 2015 under Section 7(1)(a) of the Act. 4. Earlier separate re-assessment orders dated 2.7.2014 were passed for assessment year 2009-2010 to 2011-2012 wherein the tax paid under Section 7(1)(b) was accepted. 5. However, even before the communication of the aforesaid assessment orders dated 2.7.2014 to the petitioner, recovery notice dated 10.9.2014 was served on the petitioner. 6. Under these circumstances the recovery notice dated 10.9.2014 was challenged before this court in W.P.No. 26298 of 2014. By an order dated 31.10.2014, the recovery proceedings initiated vide a notice dated 10.9.2014 was quashed as the respective assessment orders dated 2.7.2014 were dispatched only on 17.9.2014 only after the issue of the recovery notice dated 10.9.2014. 7. While quashing the aforesaid recovery notice dated 10.9.2014, liberty was given to the petitioner to challenge the assessment orders in the manner known to law. 8. Pursuant to the aforesaid order of this court in W.P.No.26298 of 2014, fr....

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....ioner had obtained TIN No. 3382242419. It is submitted that the petitioner had correctly determined tax at 2% and later at 4% under Section 7(1)(b) of the Tamil Nadu VAT Act ,2006. 15. It is further submitted that notices 26.3.2012 were issued for the assessment years 2009-2010 to 2011-2012. These notices sought to treat the sale of food /beverages from the premises registered with TIN No. 3382242419 under Section 7(1)(a) of the Tamil Nadu VAT Act, 2006 as sale by One Star hotel and therefore demanded a differential tax from the petitioner at 12.5%. 16. The petitioner also replied to the same by its replies dated 23.05.2012. Meanwhile, separate assessment orders 23.5.2012 came to be passed for these three assessment year in TIN No. 3382242419 in Form L. These assessment orders accepted the returns filed by the petitioner. 17. However, the respondent thereafter proceeded to issue a demand notice dated 10.9.2014 which was challenged in W.P .No. 26298 of 2014 which culminated in the issue of order dated 31.10.2014 of this court as mentioned above. 18. The learned counsel for the petitioner submits that the hotel business which was started during May 2008 was different from....

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....spondent proceeded to pass the impugned orders. 26. It is submitted that the impugned order was received by the petitioner on 29.6.2016. It is further submitted that instead of preferring appeals, the petitioner had filed applications before the authority under section 84 of the Tamil Nadu Value Added Tax Act, 2006 and on 28.7.2016 these applications were rejected by the assessing officer and thereafter the petitioner has been issued with the demand notice dated 27.7.2016.It is submitted that the writ petition has no merits and is liable to be dismissed. 27. Before me, apart from placing reliance on the 3 decisions, a copy of letter dated 24.3.2003 of the Government of India Department of Tourism; (H&R Division) has been filed by the learned Counsel for the Petitioner. The said letter contains a detailed Guidelines for certifying a hotel under the Star Category. 28. The real question in these writ petitioner is whether the restaurant of the petitioner was part of its One Star service and whether separate registration in 2011 for the running a Bar will have any bearing on the assessment made in the impugned orders? 29. It is noticed that the petitioner originally obtaine....

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....ware accepted in pool area Cutlery to be at least stainless steel N N N N N Plastic ware accepted in pool area Silverware         N   Bar       N N If permitted by local laws   Kitchens Refrigerator with deep freeze N N N N N Capacity based on size of F&B service Segregated storage of meat, fish and vegetables N N N N N Meats & fish in freezers, vegetables must be separate. Tiled walls, non-slip floors N N N N N   Head covering for production staff N N N N N   Daily germicidal cleaning of floors N N N N N   Clean utensils N N N N N   Six monthly medical checks for production staff N N N N N   All food grade equipment, containers N N N N N   Ventilation system N N N N N   First-aid training for all kitchen staff N N N N N   Drinking water N N N N N Water treated with UV + filtration is accepted. Garbag....

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....the same. 39. Therefore, I'm inclined to set aside the impugned order and remit the case back to the respondent to pass afresh order. 40. The respondent may obtain necessary information from the Department of Tourism, India Tourism, Anna Salai as to whether One Star classification obtained by the petitioner vide order dated 12.11.2009 was on the strength of the aforesaid restaurant and kitchen or whether a separate kitchen and a separate dinning area existed for serving food to the guest who stay temporarily in the rooms and therefore the service provided to the said guest including sales of food to their guest alone qualified for being taxed under Section 7(1)(a) of the TN VAT Act 2006. A copy of any information which may be obtained by the respondent from Department of Tourism, India Tourism, Anna Salai shall be served on the petitioner before passing final orders. The petitioner may also produce such documents and evidence to establish its defence. 41. As per rule 5 (a) of the Tamil Nadu Value Added Tax Rules, 2007,a registered dealer who intends to open a new branch has to file an application before the registering authority to amend the registration along with proof o....