TaxTMI 
TaxTMI 
2021 (10) TMI 985
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....nks said to have been supplied to the canteens by the assessee as falling under Entry No.6(a) of the Fifth Schedule placing reliance on the ruling of this Court in the case of Vikrant Tyres, Mysore vs. ACCT, Mysore (W.P.No.9861/1991, W.P.No.14155/1990). Subsequently, revisional proceedings were initiated by the Joint Commissioner of Commercial Taxes, Bengaluru, exercising the powers under Section 21(2) of the KST Act and revisional orders were passed on 13.02.2004 setting aside the assessment order of the assessing authority, against which the assessee preferred the appeal before the Tribunal. The said appeal came to be disposed of, by order dated 21.06.2010 allowing the appeal in part holding that the sale of food and drinks to the canteen as claimed by the assessee would not fall under Entry 6(a) of the Fifth Schedule to the KST Act and is exigible to levy of tax under Section 5 of the Act. However, as far as the exemption claimed on the second sales of Biscuits, cakes etc., i.e., bakery items which were purchased from the local registered dealers, the matter was remanded to the revisional authority to verify about the second sales and to pass appropriate orders in accordance wit....
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....the finding of the Advance Ruling Authority. The Advance Ruling Authority had no competency to give any ruling when the revisional proceedings were initiated by the revisional authority as per the SMR notice dated 06.09.2003. Learned counsel argued that as per subsection (5) of Section 4 of the KST Act, the Advance Ruling Authority has no competency to adjudicate upon the application where the clarification sought in the application was already pending before any officer or authority of the Department or Appellate Tribunal or any Court. The matter was already pending before the revisional authority, as such, the Advance Ruling Authority ought not to have issued the ruling on 21.01.2004. 5. Secondly, it was argued that the finding of the Advance Ruling Authority is prospective. The Assessing Authority has applied the Advance Ruling Authority dated 21.01.2004 for the assessment year 2000-01 retrospectively which is impermissible in law. Thirdly, it was submitted that the sales of food and drink made by the assessee to the canteen squarely falls under the Item No.6(a) of the Fifth Schedule and is exempted from tax under Section 8 of the KST Act. Fourthly, it was argued that the invoi....
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....s thus:- "4. Provision for Clarification and Advance Rulings.- (1) xxxx (2) xxxx (3) xxxx (4) xxxx (5) The Authority may, after examining the application and any records called for, by order, either, admit or reject the application; Provided that the Authority shall not allow the application where the question raised in the application.- (i) is already pending before any officer or authority of the Department or Appellate Tribunal or any Court; (ii) xxxx (6) xxxx (7) xxxx (8) No officer or any other authority of the Department or the Appellate Tribunal shall proceed to decide any issue in respect of which an application has been made by an applicant under this Section and is pending." 9. The main ground of challenge in this revision petition now rests on the competency of the Advance Ruling Authority in issuing the clarification when the matter was pending before the Revisional Authority. 10. Section 24 of the Act reads thus:- "24. Appeal to High Court.- (1) Any assessee objecting to an order passed by the Commissioner or the Additional Commissioner under Section 22-A or a dealer aggrieved by the order of the Authority under Section may app....
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....that the sale is made on a no profit basis. For ready reference the relevant portion of the finding of the Tribunal are quoted hereunder:- "In this case, there are 3 parties the Employer MICO - Employees and the outsourcing agent Prashanthi Affiliates who is a catering contractors and has supplied articles of food and drinks on profit basis. Even as per the conditions in the contract agreement there is no clause to indicate that the sale is made on a no profit basis. The contract agreement provides privacy of contract between the appellant and MICO and Toyota Kirloskar and there is no direct contract between the appellant and employees. Cause 16(b) of the contract provides as under:- "Clause 16(b): The contractor shall pay taxes and liabilities, if any as required under the Income Tax, Professional Taxes Act, Municipal/Panchayat Acts or any other Act as applicable." In view of the above facts it is not possible for us to accept the contention of the counsel that the appellant falls under entry 6(a) of the V Schedule to the KST Act. Hence, the first issue is answered in the Affirmative and against the appellant. 11. Thus in view of the above it is held that the ap....