{"id":78368,"date":"2005-02-15T00:00:00","date_gmt":"2005-02-14T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/tvl-pizzeria-fast-foods-vs-commissioner-of-commercial-taxes-on-15-february-2005"},"modified":"2015-01-18T14:47:40","modified_gmt":"2015-01-18T09:17:40","slug":"tvl-pizzeria-fast-foods-vs-commissioner-of-commercial-taxes-on-15-february-2005","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/tvl-pizzeria-fast-foods-vs-commissioner-of-commercial-taxes-on-15-february-2005","title":{"rendered":"Tvl.Pizzeria Fast Foods … vs Commissioner Of Commercial Taxes on 15 February, 2005"},"content":{"rendered":"
Madras High Court<\/div>\n
Tvl.Pizzeria Fast Foods … vs Commissioner Of Commercial Taxes on 15 February, 2005<\/div>\n
       \n\n  \n\n  \n\n \n \n IN THE HIGH COURT OF JUDICATURE AT MADRAS           \n\nDated:  15\/02\/2005\n\nCoram \n\nThe Hon'ble Mr.MARKANDEY KATJU, Chief Justice     \nand \nThe Hon'ble Mr.Justice D.MURUGESAN     \n\nWrit Appeal No.  3995 of 2004\nand \nWrit Petition Nos. 36203 & 36204 of 2003\nand \nW.P.M.P.Nos. 43943 & 43944\/2003    \n\nTvl.Pizzeria Fast Foods Restaurant\n(Madras) Pvt. Ltd.,\nNo.85, Santhome High Road,  \nChennai - 600 028.                                      ... Appellant\n\n-VS-\n\n1. Commissioner of Commercial Taxes  \n    Ezhilagam, Chepauk,\n    Chennai - 600 005.\n\n2. Commercial Tax Officer,\n    Valluvar Kottam Assessment Circle,\n    Chennai - 600 006.\n\n3. Tamil Nadu Taxation Special Tribunal\n    rep. by its Registrar,\n    2nd floor, Singaravelar Maligai,\n    Chennai.                                    ... Respondents\n\n\n\n\nW.P.No. 36203 & 36204 of 2003  \n\nTvl.Pizzeria Fast Foods Restaurant\n(Madras) Pvt. Ltd.,\nG 2\/3, Gee Gee Emerald,  \n312, Valluvar Kottam High Road,\nChennai - 600 034.                                      ... Petitioner in\n                                                                both the petitions.\n\nvs.\n\n1. Tamil Nadu Taxation Special Tribunal\n    Singaravelar Maligai II Floor,\n    Chennai.\n    Rep. by its Registrar.\n\n2. Commissioner of Commercial Taxes,  \n    Ezhilagam, Chepauk,\n    Chennai - 600 005.\n\n3. Commercial Tax Officer,\n    Valluvar Kottam Assessment Circle,\n    Chennai - 600 006.                                  ...Respondents in\n                                                                both the petitions.\n\n\n\n        Appeal filed under Clause 15 of the Letters Patent against  the  order\npassed  in W.P.No.6266 of 2004 dated 16.03.2004 and writ petitions filed under\nArticle 226 of the Constitution of India praying for  the  issue  of  writ  of\ncertiorari for the reasons s d therein.\n\n\n!For appellant in W.A.\n& petitioner in W.Ps :::  Mr.Arvind P.  Datar\n                        Senior counsel for\n                        Mr.R.Raghavan\n\n^For Respondents in \nboth the writ appeal\n& writ petitions        :::  Mr.T.Ayyasamy\n                        Special Govt.Pleader\n                        (Taxes)\n\n\n:J U D G M E N T \n<\/pre>\n
THE HONOURABLE THE CHIEF JUSTICE         <\/p>\n
        Heard the learned counsel for the parties.\n<\/p>\n
        2.  Writ  Petition  No.    36203  of 2003 has been filed for a writ of
\ncertiorari to quash the impugned order passed by  the  first  respondent,  the
\nTamil  Nadu  Taxation  Special  Tribunal,  Chennai in O.P.No.918 of 2003 dated
\n24.11.2003.\n<\/p>\n
        3.  Writ Petition No.  36204 of 2004 has been  filed  for  a  writ  of
\ncertiorari  to  quash  the  impugned  order  passed by the first respondent in
\nO.P.No.1347 of 2003 dated 24.11.2003.  The Tribunal has passed common order in
\nboth the above cases.  Before the T nal, the petitioner sought  to  quash  the
\nimpugned clarification No.156 of 2003 in D.Dis.Acts.  Cell-II\/31073\/2003 dated
\n26.06.2003  issued  by the Commissioner of Commercial Taxes under Section 28-A
\nof the Tamil Nadu General Sales Tax Act, 1959 (hereinafter referred to as ‘the
\nAct’).\n<\/p>\n
        4.  The Tribunal dismissed both the  petitions  for  assessment  years
\n1999-2000  and  2000-2001 on the ground that the clarifications are binding on
\nthe parties, and alternatively it was open to the petitioner to challenge  the
\ncorrectness of the clarifica before the statutory authorities under the Act.\n<\/p>\n
        5.   Writ  Appeal  No.3995 of 2004 has been filed against the impugned
\norder of the learned single Judge dismissing W.P.No.6266 of 2004 on the ground
\nof alternative remedy under the Act.  It has been  pointed  out  in  the  writ
\nappeal that the learned single ge was wrong in dismissing the writ petition on
\nthe  ground  of alternative remedy, since the assessment order has been passed
\non the basis of the clarification dated 26.06.2003 under Section 28-A  of  the
\nAct  and the said clarification issued by the first r espondent is the subject
\nmatter of challenge before this Court in W.P.Nos.36203 & 36204 of 2003.\n<\/p>\n
        6.  The facts of the case are that the petitioner is a private limited
\ncompany and runs a chain of fast food restaurants under  the  name  and  style
\n“Pizza Hut”.    The petitioner company sells pizza and other food preparations
\nat its restaurants.  It also ides hot and cold  beverages  like  soft  drinks,
\ntea, coffee  etc.   The petitioner has been registered as a dealer under Tamil
\nNadu General  Sales  Tax  Act,  1959.    It  is  alleged  that  initially  the
\nassessments  of  the  petitioner  were  completed  for  the  assessment y ears
\n1999-2000 and 2000-2001 by levying sales tax under  Section  3D  of  the  Act,
\nwhich specifically  applies  to  hotels  and  restaurants.  It is alleged that
\nuntil 01.04.2004, the levy of sales tax on the sale of food and drinks in  any
\nhotel was  at a flat rate of 2%.  Section 3D applies to all hotels\/restaurants
\nwherein the total turnover was not less than Rs.25  lakhs,  but,  Star  Hotels
\nwere subject  to  a  higher  rate  of  tax.    It  is  alleged  that after the
\nassessments were completed, the petitioner received pre-rev ision  notices  on
\n25th  June  2002  calling  upon it to show cause as to why the assessments for
\nboth years should not be revised and the sale of pizza should not be taxed  at
\n16% as  against  the  initial levy of 2%.  The petitioner filed its objections
\nbefore  th  e  third  respondent\/Commercial  Tax  Officer,   Valluvar   Kottam
\nAssessment Circle,  Chennai  –  600  006.  The third respondent\/Commercial Tax
\nOfficer pointed out that the pre-revision notices  were  on  the  basis  of  a
\nclarification  dated  16.03.2002  which directed th at branded pizza should be
\ntaxed at 16% and unbranded pizza at 8% and this clarification  was  issued  by
\nthe   Commissioner   of  Commercial  Taxes  (second  respondent  in  the  writ
\npetitions).  The same view  was  reiterated  in  another  clarification  dated
\n20.12.2002.\n<\/p>\n
        7.   In  view  of the above two earlier clarifications dated 16.3.2002
\nand 20.12.2002, the petitioner sought for  a  clarification  from  the  second
\nrespondent under  Section  28-A of the Act, as to the proper rate of tax.  The
\nrequest for clarification was fi in terms of Form XIV under Rule  26A  of  the
\nTamil Nadu  General  Sales  Tax  Act  Rules.    In  the  said application, the
\npetitioner pointed out that until 01.04.2002, Section 3D of the Act read:  –
\n” Section 3D.  Payment of tax by hotels, restaurants and sweet stalls:  –
\n(1) Notwithstanding anything contained in sub-section(1) of  Section  3  every
\ndealer  whose  total turnover is not less than twenty five lakhs of rupees for
\nthe year on the first point of sale of food and drinks in hotels, restaurants,
\nsweet stalls and any o ther eating houses other than those falling under  item
\n20 of PART-C of the first schedule, shall pay tax at the rate of 2 per cent on
\nthe taxable turnover.\n<\/p>\n
Explanation:-  For  the  purpose  of  computing  the  total turnover under the
\nsub-section, the purchase turnover liable to tax under Section  7-A  shall  be
\nadded to the sales turnover”\n<\/p>\n
        8.   The  contention  of  the  petitioner  was that before 01.04.2002,
\nSection 3D made no distinction between branded and unbranded food and  drinks.
\nSale  of all types of food and drinks in hotels and restaurants would be taxed
\nonly at 2% of the taxable tur r, except star hotels.  Therefore, it would  not
\nbe  proper to levy sales tax at 16% on pizza by treating them as branded goods
\nunder Entry 4(iii), Part-E of the First Schedule.\n<\/p>\n
        9.  The petitioner also pointed out that Section  3D  was  drastically
\namended on 01.04.2002, and after the amendment, it read as:  –
\n” Section 3-D.  Payment of tax by hotels, restaurants and sweet stalls:  –
\n(1)  Notwithstanding anything contained in sub-section (1) of Section 3, every
\ndealer whose total turnover is not less than ten lakhs of rupees for the  year
\nshall  pay tax at the rate of two per cent on the first point of sale of ready
\nto eat unbranded goo ds including sweets, savouries,  unbranded  non-alcoholic
\ndrinks  and  beverages  served  in  or  catered indoors or outdoors by hotels,
\nrestaurants, sweet stalls, clubs, caterers and any other  eating  house  other
\nthan those falling under item 29 of the Part-C of the first schedule.
\nExplanation (1):  – For the purpose of computing the total turnover under this
\nsub-section,  the  purchase  turnover liable to tax under Section 7-A shall be
\nadded to the sales turnover.\n<\/p>\n
Explanation (2):  – For the purpose of computing the total turnover under this
\nsub-section, the sales turnover of all business units  in  a  common  premises
\nsharing  the  common  kitchen  or  common employees shall be added to the sale
\nturnover of the business un it having higher turnover.”\n<\/p>\n
        10.  The petitioner contended that the amended  section  levied  sales
\ntax  at 2% on unbranded foods and drinks served in hotels and restaurants, and
\ntherefore, the distinction between branded and  unbranded  foods  thus  became
\napplicable only after 01.04.2\n<\/p>\n
        11.   The  petitioner further submitted that even after the amendment,
\nthe pizzas sold by it are not branded with any mark or name.  Pizzas are  sold
\nin restaurants  just  like idly, dosa, vada, etc.  Sale of these products in a
\nrestaurant cannot be treated a sale of ‘branded food’.\n<\/p>\n
        12.  In response to the petitioner’s request  the  Commissioner\/second
\nrespondent  issued  the  impugned  clarification no.156\/2003 dated 26.06.2003.
\nThe clarification refers to the  pleas  raised  by  the  petitioner,  and  the
\noperative portion of the clarifica reads:  –\n<\/p>\n
” It is seen that the restaurant Tvl.Pizza Hut, have registered their products
\nunder  Trade  and Merchandise Marks Act, 1958 for pizza, pie preparations made
\nfrom cereals, for food for human consumption.  Therefore, sale of the  branded
\nproducts registered  u  nder  TMM  Act, such as pizza, etc.  falls outside the
\nambit of Section 3D of the Act, and is, therefore, taxable at 16% under  Entry
\nNo.3(1) in Part-E of the first schedule to the TNGST Act 1959.  For the period
\nprior  to  01.04.2002 also, the liability is und er Entry No.4 (iii) of Part-E
\nof the First Schedule to the TNGST Act, 1959, taxable at 16%.”\n<\/p>\n
13.  The petitioner aggrieved by this clarification filed O.P.Nos.918 and 1347
\nof 2003 before the Tribunal to quash the above clarification no.156  of  2003.
\nThe  Tribunal  dismissed  the  petitions  on the ground that the clarification
\nissued under Section 28-A of the TNGST Act  could  be  challenged  before  the
\nassessing authority.    The Tribunal held that even if the assessing authority
\npassed an order against the assessee, the same should be assailed only in  the
\nappeal.   The Tribunal referred to its own Full Bench decision in O.P.Nos.1334
\nand 1336 dated 25.01.2001, which stated that  whatever  be  the  clarification
\nissued, it  would  bind the parties who had sought for the clarification.  The
\nTribunal also referred to an earlier decision of the Division Bench of this  C
\nourt  in  W.P.No.10709  of 1999 which stated that a clarification issued under
\nSection 28A of the TNGST Act could be assailed in appeal as well as before the
\nassessing officer on the basis of proper evidence.  Therefore,  without  going
\ninto  the  merits of the clarification, the Tribunal declined to interfere and
\ndismissed the petitions.\n<\/p>\n
14.  Learned senior counsel for the petitioner Mr.Arvind Datar submitted  that
\nthe  impugned clarification is contrary to the statutory provisions of Section
\n3D of the Act as applicable prior to 01.04.2002, and the section, as extracted
\nabove, levied a fl at rate of tax of 2% on the sale of all food and  drink  in
\nhotels  with  turnover of more than Rs.25 lakhs per annum, whereas the sale of
\nfood and drinks in star hotels is  taxed  at  a  higher  rate.    It  is  also
\nsubmitted  by  the  learned  senior  counsel  that  Secti  on 3D, the charging
\nsection, made no distinction between the branded or unbranded  food.    It  is
\nonly  after it was amended on 01.04.2002 that the section levied a flat tax at
\n2% on unbranded food and drinks in hotel and restaurants.\n<\/p>\n
        15.  Learned senior counsel further submitted that  the  Tribunal  was
\nnot justified in holding that the clarification could be challenged before the
\nassessing officer  and  the appellate authorities under the Act.  He contended
\nthat the  clarification\/circ  s  are  binding  on  all  the  officers  in  the
\ndepartment,  and  hence, directing the petitioner to challenge the correctness
\nof the circular before the assessing authority or appellate authority would be
\nan exercise in futility, because the Commissioner of Comm  ercial  Taxes,  who
\nissued  the  circular,  is  a  higher  authority than the assessing officer or
\nappellate authority.\n<\/p>\n
        16.  In order to substantiate his contentions, learned senior  counsel
\nfor the petitioner referred to several decisions of the Supreme Court, as well
\nas other High Courts.\n<\/p>\n
        17.  In  Filterco  v.    CST,  (1986) 2 SCC 103, the Supreme Court was
\nconcerned with a clarification issued under Section 42B of the Madhya  Pradesh
\nGeneral Sales  Tax Act, 1958.  The above section empowered the Commissioner to
\nmake an order determining the e of tax on  such  goods  in  the  case  of  any
\ndispute.   Like  Section  28-A  of the Tamil Nadu Act, the order passed by the
\nCommissioner  was  binding  on  all  the  authorities  except  the   appellate
\nauthority.   In  that case, the High court dismissed the writ petition o n the
\nground that the assessee had an alternate remedy by way of  appeal  under  the
\nAct.   The Supreme Court held that the High Court ought not have dismissed the
\nwrit petition in such a case.  It  observed  that  the  order  passed  by  the
\nCommissioner  would  be  bi  nding  on the assessing authorities, and although
\ntechnically it would be open to the assessee to file an appeal, it would be  a
\nmere exercise in futility when a superior officer like the Commissioner passed
\nan order determining the rate of tax.\n<\/p>\n
        18.  In  Union of India v.  Ahmedabad Electricity Company Ltd.,<\/a> (2003)
\n158 ELT 3 = (2003) 134 STC 24 an objection was raised that the  writ  petition
\nagainst a  circular  ought not to be entertained.  The Supreme Court held that
\nonce a circular is issued, a bjection to the same before a subordinate officer
\nwould be a futile attempt.  It was further held  that  the  impugned  circular
\ncould  not  have  been  challenged before the departmental authorities as they
\nwould be bound by it,  and  accordingly,  the  High  Court,  was  entitled  to
\nentertain  the writ petition challenging the circular under Article 226 of the
\nConstitution of India.  Even though the above said decision  was  rendered  in
\nthe context of the Central Excise Act, in our opinion the same principle would
\napply to the petitioner’s case.\n<\/p>\n
        19.  Similarly, in  Vam  Organic  Chemicals  Ltd.   v.  State of Uttar
\nPradesh,<\/a> (2003) 132 STC  8  the  Allahabad  High  Court  held  that  when  the
\nsubordinate  authorities are bound by a circular, no purpose will be served by
\nasking the petitioner to appear before assessing authority who will feel bound
\nby the circular issued by the Government of Uttar Pradesh.\n<\/p>\n
        20.  In Sri Rajarajeswari Parboiled Rice Industry v.  CTO, (1999)  115
\nSTC 99, the Andhra Pradesh High Court held that a circular which is binding on
\nthe  assessing authority will also inhibit the appellate authority from taking
\na different view.  Even the statutory provision states that the Commissioner’s
\ncircular is not binding on the appellate  authority,  he  is  administratively
\nsubordinate to the Commissioner and therefore, will be inhibited from taking a
\ndifferent view.    The  Andhra Pradesh High Court followed the decision of the
\nSupreme Court in Filterco v.  CST (supra).\n<\/p>\n
        21.  A similar view was taken by the  Karnataka  High  Court  in  Arif
\nTransport v.  CTO, (1999) 116 STC 207.\n<\/p>\n
        22.  In another decision of the Andhra Pradesh High Court, it was held
\nthat  once  the highest authority constituted under the Act has pre-determined
\nthe  question  and  directed  all  subordinate  authorities  to  interpret   a
\nnotification  in a particular mann the statutory remedy of appeal and revision
\nceased to be an effective alternative  remedy  (vide  Etikoppaka  Co-operative
\nAgricultural Society Ltd., v.  Union of India, 1979 ELT (J533).\n<\/p>\n
        23.   Learned senior counsel also relied on the decision of this Court
\nin Madras Bar Association v.  Central Board of Direct Taxes,<\/a>  (1995)  216  ITR\n<\/p>\n
240.   In  the above decision, this Court was concerned with a circular issued
\nby the Central Board  of  Direc  xes  which  sought  to  bring  contracts  for
\nrendering  professional  services  within  the  purview of Section 194C of the
\nIncome Tax Act, 1961 requiring  deduction  of  income  tax  at  source.    The
\ncircular expanded  the scope of Section 194C.  The counsel for the depar tment
\nhad submitted that the correctness of the circular could be  canvassed  before
\nthe assessing  authorities.  Alternatively, the assessing authorities could be
\ndirected to dispose off the assessment  without  reference  to  the  circular.
\nThis  Court  held  that  such a direction or disposal would not do any real or
\neffective justice to the parties who have approached the Court, and the threat
\nimposed by such circulars was real and substantial and had the consequence and
\neffect of a constrained influence on the  authorities  functioning  under  the
\nAct.  This Court further held that having regard to the authority which issued
\nthe  circular  and  the  source  of  power, the threat could not be completely
\nerased except by quashing and setting aside the circular.\n<\/p>\n
        24.  Before dealing with the questions involved in these cases, we may
\nrefer to Section 28-A of the Act, which states:  –\n<\/p>\n
“Power to issue clarification by Commissioner of Commercial Taxes:  –
\n(1) The Commissioner of Commercial Taxes on an  application  by  a  registered
\ndealer, may  clarify any point concerning the rate of tax under the Act.  Such
\nclarification shall be applicable to the goods specified in the application.
\nProvided  that  no  such  application  shall  be  entertained  unless  it   is
\naccompanied  by  proof  of payment of such fee, paid in such manner, as may be
\nprescribed.\n<\/p>\n
(2) The Commissioner of Commercial Taxes may, if he considers it necessary  or
\nexpedient  so  to  do, for the purpose of uniformity in the work of assessment
\nand collection of tax, clarify any point concerning the rate of tax under this
\nAct or the procedure relating to assessment and collection of tax as  provided
\nfor under this Act.\n<\/p>\n
(3)  All persons working under the control of Commissioner of Commercial Taxes
\nshall observe and follow the clarification issued under  sub-section  (1)  and
\nsub-section (2)”\n<\/p>\n
Amendment  to  the  above  Act  was  inserted from 6.11.1997 by the Tamil Nadu
\nGeneral Sales Tax (6th Amendment) Act, 1997.\n<\/p>\n
        25.  A perusal of the above provision shows that the Commissioner  can
\nclarify  any  point  concerning  the rate of tax under the Act, and in view of
\nsub-section (3) all persons working under the control of the Commissioner have
\nto observe and follow the ification issued by him.  In our opinion, this power
\nof the Commissioner to issue clarification does not mean that the Commissioner
\ncan override or amend provisions of the Act or rules made thereunder.\n<\/p>\n
        26.  It may be noted that a clarification can only  be  issued  on  an
\napplication by a registered dealer regarding the rate of tax on any goods.  It
\nseems  that  the  purpose  of inserting Section 28-A was that some businessmen
\nwanted to know their tax liabi , so that they could make financial  and  other
\narrangements accordingly.   In a business, a businessman has to do planning so
\nthat he can earn profits.  For doing such planning, he obviously would like to
\nknow what would be his tax liability so that he can t ake it into account when
\ndoing his financial planning for the business.   Hence,  for  the  above  said
\npurpose,  he  can apply to the Commissioner to clarify any point regarding the
\nrate of sales tax on a taxable commodity.\n<\/p>\n
        27.  It may be noted that the  rates  of  tax  are  mentioned  in  the
\nSchedules to the Act.  The charging sections are Section 3 and other following
\nprovisions of  the  Act.  It is well settled that a Schedule to an Act is part
\nof the Act itself and hence has tutory force.  The Commissioner, who  is  only
\nan  executive  authority,  cannot  over-ride the provisions of the Act itself.
\nThat being so, in our opinion, the direction issued by the Commissioner  under
\nSection  28-A  of  the  Act  cannot  override  the  rate  of tax f ixed in the
\nSchedules to the Act.\n<\/p>\n
        28.  As regards, sub-section (3) of Section 28-A, in our opinion  this
\nprovision  only  means that when the sales tax authorities are fixing the rate
\nof tax in their executive capacity, they shall  follow  the  circular  of  the
\nCommissioner  under  Section  2  However,  when  the sales tax authorities are
\nacting in a judicial or quasi-judicial capacity, in our opinion,  they  cannot
\nbe  bound  by  the  order of the Commissioner, because to take a contrary view
\nwould mean interference by the executive in a judicial fu nction.    When  the
\nassessing  authority  under  the  Sales  Tax  Act (or the appellate authority)
\ndecides a case, he is functioning in a judicial capacity (even though  he  may
\nbe a  sales  tax authority).  Hence, when he is acting in a judicial capacity,
\nhe should n ot feel bound by any clarification issued by the Commissioner,  as
\nsuch  clarifications  under  Section  28-A  are  not binding on him when he is
\nfunctioning in a judicial capacity, and they  are  only  binding  when  he  is
\nfunctioning  in  an administrative capacity, when initially fixing the rate of
\ntax on a specific commodity.\n<\/p>\n
29.  In Kerala Financial Corporation v CIT, (1994) 210 ITR  129,  the  Supreme
\nCourt  held  that  the  circulars  issued by the Central Board of Direct Taxes
\nunder Section 119 of the Income Tax Act, 1961, could not override  or  detract
\nfrom  the  provisions  of  the A ct, as that would be destructive of all known
\nprinciples of law and would be giving a power to the  executive  authority  to
\namend the  provisions  of  the  Act.   In our opinion, the same principle will
\napply to Section 28-A of the Act also.  The Commissioner can not take  a  view
\nwhich  is  contrary  to  the provisions of the Act or rules made thereunder as
\ninterpreted by the Courts or the statutory authorities under the Act when they
\nare performing judicial or quasi judicial functions (vide Sales Tax Officer v.
\nShree Durga Oil Mills Ltd,<\/a> 1998 (97) ELT 202 (206).\n<\/p>\n
        30.  In our opinion, though the circular issued  by  the  Commissioner
\nunder  Section  28-A  is  not  binding on the assessing authority or appellate
\nauthority, yet we cannot overlook the fact that since the  Commissioner  is  a
\nsuperior  authority  to the assess officer or appellate authority, it would be
\nimpracticable to expect the subordinate authority to take a view  contrary  to
\nthe view  expressed  by  the Commissioner.  Hence, in our opinion, the plea of
\nalternative remedy cannot be accepted in such a case, and  if  the  petitioner
\ncontends  that the clarification has been issued contrary to the provisions of
\nthe Act or rules made thereunder, it will always be open to question the  same
\nunder Article 226 of the Constitution of India.\n<\/p>\n
        31.    In   the  present  case,  the  petitioner  was  served  with  a
\npre-revision notice on the basis of a  circular  issued  on  18.3.2002,  which
\nstipulated that  branded  pizza  could  be  taxed  at  16%.    Accordingly the
\nassessments which had been initially completed a hich levied a tax of 2% under
\nSection 3D of the Act were sought to be revised and tax at 16% was proposed to
\nbe levied.  A plain reading of Section 3D, as it existed prior to  01.04.2002,
\nindicates  that  it  levies  a tax on all foods and drinks sold in hotel s and
\nrestaurants having a total turnover of not less than Rs.25  lakhs  at  a  flat
\nrate of  2%.  The section made no distinction as to whether the food and drink
\nthat was sold was branded or unbranded.  Section 3D introduced the concept  of
\nsale  of  unbranded  good and drink only in the amended provisions, which came
\ninto effect on 01.04.2002.    Hence,  in  our  opinion,  it  was  clearly  not
\npermissible  for the Commissioner of Commercial Taxes to issue a clarification
\nthat branded pizza would be taxed at 16%.\n<\/p>\n
        32.  As pointed out by the  Supreme  Court  in  the  Kerala  Financial
\nCorporation Ltd.    case  (supra) this would really tantamount to amending the
\nTNGST Act itself by a clarification issued under Section 28-A.  A direction to
\nlevy tax at 16% when the chargin ction prescribes a flat rate of 2% is, in our
\nopinion, not permissible.  The impugned clarification is clearly  contrary  to
\nthe provisions  of Section 3D as it stood prior to 01.04.2002.  Therefore, the
\nimpugned clarification no.156\/2003 dated 26.6.2003 is l iable to be quashed.\n<\/p>\n
        33.  In the present case, the Tribunal has referred to a  decision  of
\nits own  Full Bench in O.P.Nos.1334 to 1336 of 2000 dated 25.01.2001.  In that
\ncase, it was held that the clarification would bind the party which sought for
\nit, but at the same  time  ould  be  open  to  the  assessee  to  canvass  the
\ncorrectness of the clarification before the assessing officer or the appellate
\nauthority.   In the impugned order of the Tribunal, reference was also made to
\na decision of a Division Bench of this Court in W.P.No .10709  of  1999  dated
\n24.6.1999.   The  Division  Bench  had  held that a clarification issued under
\nSection 28-A was not an adjudication and the clarification could  be  assailed
\nbefore the  assessing  officer  and  before  the  appellate authority.  In our
\nopinion, th e attention of the Full Bench of the  Tribunal  and  the  Division
\nBench of this High Court was not drawn to the various decisions of the Supreme
\nCourt referred  to above.  It has been repeatedly held in those decisions that
\na clarification or a circular can b e challenged under Article 226.    It  has
\nbeen  pointed out therein that once a clarification or circular is issued by a
\nsuperior authority, it would be an exercise in futility to ask the assessee to
\nraise an objection to the circular before an inferior  auth  ority,  vide  the
\nConstitution Bench  decision of the Supreme Court in Filterco v.  CST (supra).
\nSubsequently, it was also held by the Supreme  Court  that  clarifications  or
\ncirculars  could  be challenged before the High Court under Article 226 of the
\nCons titution, since the remedies of appeal or revision would be futile or not
\nefficacious.  In view of these decisions of the Supreme Court, the views taken
\nby the Full Bench of the Tribunal and by the Division Bench of this  Court  do
\nnot lay down the correct law.\n<\/p>\n
34.    In   W.A.No.3995   of  2004,  the  appellant\/petitioner  was  issued  a
\npre-assessment notice on 31.10.2003 for the assessment year 2001-2002  whereby
\nthe  Commercial Tax Officer proposed to levy tax at 16% on branded pizza based
\non two earlier clarifications da ted 18.08.2001 and 20.12.2002.  In  the  writ
\nmiscellaneous petitions (W.P.M.P.      Nos.      43943  &  43944  of  2003  in
\nW.P.Nos.36203 & 36204 of  2003)  the  petitioner  had  prayed  for  injunction
\nagainst  this  pre-assessment  notice, and a Division Bench of this Court gran
\nted stay of recovery.    Pending  the  writ  petition,  the  third  respondent
\nproceeded to finalise the assessment order with express reference to the above
\ntwo circulars.    Since the earlier writ petitions were pending, the appellant
\nfiled W.P.No.6266 of 2004 cha llenging the  assessment  order.    The  learned
\nsingle  Judge  dismissed the writ petition on the short ground of an alternate
\nremedy being available to the petitioner.\n<\/p>\n
35.  It has already been observed by us that once circular\/clarifications  are
\nissued by a superior authority, an appellate remedy to a lower authority would
\nbe futile,  and  not  efficacious.    Hence,  we cannot agree with the learned
\nsingle Judge in this respe ct.\n<\/p>\n
36.  It may be mentioned that the dispute in  the  present  case  is  only  in
\nrespect of  the  tax  liability  prior  to  01.04.2002.    As  regards the tax
\nliability subsequent to 01.04.2002, the matter is pending before the statutory
\nappellate authorities, and hence, we are not expressing any opinion about  the
\nsame,  except  to  say  that  the  impugned  circular should not be treated as
\nbinding on the said authorities as they are exercising judicial function.\n<\/p>\n
37.  In view of the above, we quash the circular no.156\/2003 dated  26.06.2003
\ninsofar  as it relates to the tax liability for the period prior to 01.04.2002
\nto pay sales tax at 16%, and the assessment order dated 10.12.2003.  The order
\nof the Tribunal dated 24.11.2003 is set aside.  The writ appeal and  the  writ
\npetitions are allowed.  No costs.  Consequently, W.P.M.Ps are closed.\n<\/p>\n
Index:Yes
\nInternet:Yes<\/p>\n
pv\/<\/p>\n
Copy to:\n<\/p>\n
1.  Commissioner of Commercial Taxes
\nEzhilagam, Chepauk,
\nChennai – 600 005.\n<\/p>\n
2.  Commercial Tax Officer,
\nValluvar Kottam Assessment Circle,
\nChennai – 600 006.\n<\/p>\n
3.  Tamil Nadu Taxation Special Tribunal
\nrep.  by its Registrar, 2nd floor, Singaravelar Maligai,
\nChennai.\n<\/p><\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court Tvl.Pizzeria Fast Foods … vs Commissioner Of Commercial Taxes on 15 February, 2005 IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 15\/02\/2005 Coram The Hon’ble Mr.MARKANDEY KATJU, Chief Justice and The Hon’ble Mr.Justice D.MURUGESAN Writ Appeal No. 3995 of 2004 and Writ Petition Nos. 36203 & 36204 of 2003 and W.P.M.P.Nos. […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-78368","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nTvl.Pizzeria Fast Foods ... vs Commissioner Of Commercial Taxes on 15 February, 2005 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/tvl-pizzeria-fast-foods-vs-commissioner-of-commercial-taxes-on-15-february-2005\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Tvl.Pizzeria Fast Foods ... vs Commissioner Of Commercial Taxes on 15 February, 2005 - 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