State of West Bengal and ors. Vs. Calcutta Club Limited and anr. - Court Judgment

Excerpt:
- kalyan jyoti sengupta, j.1. by this application the state of west bengal has impugned the judgment and order dated july 3, 2006 reported as calcutta club ltd. v. deputy commissioner of commercial taxes and hindustan club ltd. v. commercial tax officer [2007] 10 vst 385 (wbt) passed by the learned taxation tribunal, west bengal, whereby and whereunder several matters being case nos. rn 17 of 2003, rn 46 of 2004, rn 71, 72, 73, 120, 121 and 122 of 2003 filed by calcutta club limited and hindustan club limited, respectively, were disposed of as it was noted by the learned tribunal that the legal controversies involved in these matters are identical and similar.2. however, the present application has been filed against calcutta club limited and not against hindustan club limited. in our view, hindustan club limited should have been added as party respondent when this judgment impugned has decided the matter filed by the said club also. therefore, we record that this judgment will be applicable only in case of calcutta club limited.3. the undisputed fact is set out hereunder:the calcutta club limited filed the above application before the learned tribunal praying for declaration that the said club is not a 'dealer' within the meaning of the west bengal sales tax act, 1994 as there is no sale of any goods in the form of food, refreshment and drinks by the club to its permanent members and as such the club, the applicant, is not liable to pay sales tax thereon under the west bengal sales tax act, 1994 and for quashing and/or setting aside the letters of demand and for nullifying action of the respondents threatening to levy tax on the supplies made to the permanent members.4. the said club was not paying sales tax nor was registered as a dealer before the sales tax act, 1994 came into force and even thereafter for sometime. being encouraged by the judgment and order dated may 11, 1994 of the honourable supreme court in the case of automobile association of eastern india v. state of west bengal [2002] 40 sta 154, the state authority has started taking action to bring this club within the purview of the provision of the sales tax act, 1994 contending that by virtue of definition given in section 2(30) of the west bengal sales tax act, 1994 (hereinafter referred to as 'the act, 1994') which is incorporated almost adopting the language mentioned in article 366, sub-clauses (e) and (f), clause (29a) of the constitution of india. according to the state, in view of the language mentioned in the aforesaid section read with the aforesaid article of the constitution of india now the club whether incorporated or unincorporated, will have to pay tax for supply of foods, drinks, beverages to its members permanent or temporary treating the same being inclusive and/or deemed definition of 'sale'.5. the learned tribunal after considering the argument of the state as well as the club held that there is no substantial change of the definition of 'sale' in the new act though language and/or phraseology has been changed and/or brought into the statute book borrowing the language of the article 366 of the constitution of india. the learned tribunal held that even the language mentioned in article 366, clause (29a)(e) and (f) of the constitution of india which is the source of the present definition of 'sale' as mentioned in the said act does not obliterate and eliminate the concept of mutuality and/or reciprocity of the members of incorporated club vis-a-vis its permanent members. in substance, the learned tribunal held that there has been no sale which requires consideration, in the club as because there has been an identity between the members and the club which is an alter ego of the members collectively. it is further observed by the learned tribunal that payment made by the members to the club is in real sense payment to themselves who are the principals and the club though being a separate entity, is an agent and instrument for collection of such payment. according to the learned tribunal consideration either making payment in cash or otherwise is germane to constitute a transaction being sale. accordingly, the learned tribunal allowed the application and granted relief.6. mr. l.k. gupta, learned senior advocate, appearing with mrs. seba ray, in support of this application, contends that after the constitutional amendment and in view of the definition mentioned in the 1994 act and particularly by virtue of clause (f) of article 366(29a) of the constitution of india such supply for a consideration shall be 'deemed to be a sale'. he submits that identical question came for consideration before the andhra pradesh and madras high courts and both the honourable high courts have held that in view of the amendment of the constitution with insertion of article 366 (29a) such transactions are sales and as such exigible to sales tax, irrespective of mutuality or reciprocity between the members and the club and, therefore, all earlier judgments in this regard are no longer relevant. according to him, in the case of automobile association of eastern india v. state of west bengal reported in [2002] 40 sta 154, the supreme court has held so. he urges that the expression 'deemed sale' in article 366(29a) of the constitution is a fiction of law, it must be given full sweep of its operation referring to a decision of the supreme court in commissioner of commercial tax v. swam rekha cokes and coals pvt. ltd. reported in [2004] 136 stc 57. supply by the calcutta club limited to is members as it appears from its memorandum of association being in 'annexure a' at page 101 (clause g) of food, drinks, etc., is for a price for which bill is presented, demand is raised and enforced through termination of membership. hence there is a consideration as per section 2(d) of the contract act. therefore, it cannot be contended that there has not been any sale and supply. the restricted scope of article 366(29a) cannot be given referring to the statement of objects and reasons of the act and it will be absolutely clear from article 366(29a), clause (f) itself. in support of his contention he has relied on a decision of the supreme court judgment s.s. bola v. b.d. sardana reported in : air1997sc3127 . he submits that by this judgment of the supreme court tamil nadu kalyana mandapam assn. v. union of india reported in [2004] 135 stc 480 the state imposed sales tax on supply of foods and drinks by whatsoever mode. thus, the judgment of the learned tribunal is wrong particularly when it has described that the judgment of the supreme court automobile association of eastern india v. state of west bengal reported in [2002] 40 sta 154 as being sub silentio.7. mr. r.n. bajoria, learned senior advocate, appearing with mr. j.p. khaitan and mr. b.k. roy on behalf of the calcutta club limited submits that the judgment of the learned tribunal is well-reasoned and considered dealing with all the laws on the subject with reference to the fact of existence of mutuality and reciprocity between the members and the club itself though an incorporated one. he further submits that it is well-settled law that mutual transactions of an incorporated club with its members which are not liable to pay tax as the club acts only as agent of the members. he further submits that sub-clause (e) of article 366(29a) is confined to unincorporated clubs. the statements of objects assumed that incorporated clubs were already taxable though that was not the case. sub-clause (e) does not apply to the incorporated clubs. his further contention is that the revenue has also not justified taxation with reference to sub-clause (e). he contends that the supreme court judgment and order in automobile association of eastern india's case [2002] 40 sta 154 is not declaration of law under article 141 as present issues were neither raised nor considered, and the learned tribunal has rightly not followed such decision while deciding the issue. he submits further that however all these aspects are now considered by a well-considered and reasoned larger bench decision of the supreme court in case of bharat sanchar nigam ltd. v. union of india reported in [2006] 145 stc 91 : [2006] 3 vst 95 which referred to and relied upon the statement of objects for construing the scope of the various sub-clauses and has held that sub-clause (f) was applied to catering contracts and was meant to overrule its decisions in state of himachal pradesh v. associated hotels of india ltd. : [1972]2scr937 and northern india caterers (india) ltd. v. lt. governor of delhi : [1979]1scr557 cases which dealt with supply of food and services by hotels to its guests and restaurants to its customers. in this judgment, according to him, it has been held that extended meaning of 'sale' in six sub-clauses were transaction specific and did not generally enlarge the concept of sale.8. he further submits that sub-clause (f) postulates supply for consideration. there can be no supply by an agent to a principal or of any consideration therefor. the agent acts for and on account of his principal and not antagonistic to him. the principal cannot supply to himself or pay consideration to himself as a servant making purchases for master, agent purchasing raw materials for principal. transaction of agency were not at all made deemed sales. he contends that mutual transactions were specifically dealt with by sub-clause (e) but that is confined to unincorporated bodies. he further submits that sub-clause (f) deals with catering contracts of hotels and restaurants and it would be evident from the validation and exemption provisions of the 46th amendment which retrospectively validated the assessments and recoveries but granted exemption in the case of restaurants from the date of judgment in northern india caterers (india) ltd. v. lt. governor of delhi : [1979]1scr557 , i.e., september 7, 1978 and in the case of hotels from the date of the judgment in the case of state of himachal pradesh v. associated hotels of india ltd. : [1972]2scr937 , i.e., january 4, 1972, in both the cases till the commencement of the 46th amendment. thus, there would be no scope for such validation or exemption in case of mutual transactions of incorporated clubs which were erroneously assumed to be already taxable and not required to be included as deemed sales.9. we have heard the learned counsel extensively and given our anxious consideration in the matter of controversy. the point for consideration in this case is whether the learned tribunal having regard to the definition of 'sale' in section 2(30) of the 1994 act read with clause (29a) of article 366 sub-clauses (e) and (f) of the constitution of india had decided correctly that the members club like the first respondent herein comes within the purview of the aforesaid definition in view of the mutuality and reciprocity amongst the members in the club. it is now well-settled that before amendment of article 366 with insertion of sub-clauses (e) and (f) of clause (29a) of the constitution of india the position of the law was that the members' club proprietor club was not exigible to sales tax with regard to the sale and supply of food, drinks and beverages by the club to its members whether the same is incorporated or unincorporated. before insertion the supreme court in the case of commissioner of income-tax v. bankipur club ltd. : [1997]226itr97(sc) has held amongst other that as a principle of law that members' club (and not a proprietary club) whether incorporated or not the members of the company and the clubs are identical meaning thereby the club though incorporated act as agent and/or instrumentality of the members. in this case the tribunal had accepted the judgment rendered in case of chelmsford club v. commissioner of income-tax [2000] 243 itr 89.10. in the case of automobile association of bengal v. commissioner of income-tax : [1968]69itr878(cal) the same principle was reiterated by this court that principle of mutuality should come into play in case of members' club and there must be an identity between the contributors to the fund and the participators therein. this view has been followed constantly in each and every case. but the debate has been reopened for the purpose of imposition of sales tax eliminating principle of mutuality in members' club. in view of the aforesaid definition given in the 1994 act read with the constitutional provision as above whether the mutuality concept in a members' club is done away with or not. in order to examine the reasoning and findings of the learned tribunal we feel it appropriate to set out the aforesaid article 366, clause (29a), sub-clauses (e) and (f) and also the definition of section 2(30) of the 1994 act:.(e) a tax on the supply of goods by any unincorporated association or body of persons to a member thereof for cash, deferred payment or other valuable consideration ;(f) a tax on the supply, by way of or as part of any service or in any other manner whatsoever, of goods, being food or any other article for human consumption or any drink (whether or not intoxicating), where such supply or service, is for cash, deferred payment or other valuable consideration,and such transfer, delivery or supply of any goods shall be deemed to be a sale of those goods by the person making the transfer, delivery or supply and a purchase of those goods by the person to whom such transfer, delivery or supply is made.2(30). 'sale' means any transfer of property in goods for cash, deferred payment or other valuable consideration, and includes-(a) . . .(b) . . .(c) . . .(d) any supply, by way of, or as part of, any service or in any other manner whatsoever, of goods, being food or any other article for human consumption or any drink (whether or not intoxicating), where such supply or service is for cash, deferred payment or other valuable consideration;.and such transfer, delivery or supply of any goods shall be deemed to be a sale of those goods by the person or unincorporated association or body of persons making the transfer, delivery, or supply and, purchase of those goods by the person to whom such transfer, delivery, or supply is made, but does not include a mortgage, hypothecation, charge or pledge....11. after the aforesaid constitutional amendment was incorporated in the state of tamil nadu as well as by the state of andhra pradesh there have been two amended definition of 'sale' adopting in substance aforesaid constitutional provision. we find one of such cases was decided by the andhra pradesh high court reported in [1992] 87 stc 227 namely jubilee hills international centre v. commercial tax officer. in that case relying on the definition made in the corresponding definition of 'sale' in the state act reading with the aforesaid constitutional provision the division bench held that the concept of mutuality in members' club has been done away with and the old law settled by the supreme court as well as all the high courts is no longer holding the filed. it has been held in that case once the supply of foods, drinks and beverages is made available to the members of an incorporated members' club it is treated to be sale for the purpose of imposition of tax. similar view is taken in case of cosmopolitan club v. tamil nadu taxation special tribunal reported in .12. the supreme court in case of automobile association of eastern india [2002] 40 sta 154 by a judgment and order dated may 11, 1994 has made an observation that in view of the constitutional amendment the levy can easily be sustained for the period commencing from october 1, 1983. the sheet anchor of the argument of mr. gupta is that in view of the aforesaid judgments of two division benches of two different high courts and the decision of the supreme court in automobile association of eastern india's case [2002] 40 sta 154 the learned tribunal was not justified in ignoring the same, to apply the principle of mutuality so as to keep the members' club (incorporated) out of the purview of the said sales tax act.13. we have carefully read the judgment of division bench of a.p. high court as well as that of madras high court. we are of the view that learned tribunal has correctly read the same and we endorse the view as is also been taken by necessary implication by the learned tribunal that both the high courts have not decided vital point, namely, the aspect of consideration. upon careful reading of the constitutional amendment as well as. the provision of the definition of 'sale' under the 1994 act it is clear that supply of food, drinks and beverage has to be made upon payment of consideration either in cash or otherwise to make the same exigible to tax. to clarify it one must supply the beverage in consideration of paying the value thereof by the members. in clause (f) it is made clear that if such supply of aforesaid things is effected either on immediate payment of cash or deferred payment or valuable consideration (emphasis here italicisd supplied) which may be of various nature only then the tax can be levied. the division bench of the aforesaid two high courts were not called upon to discuss or decide whether in the membership club incorporated or not, any payment is made essentially for supply of drinks, beverages or not, though apparently upon presenting the bill the club collects money for the supply made. in our considered opinion if it is examined closely it will appear such collection by the club from members is not payment of price of drinks or beverages, it is rather reimbursement of expenses met from the fund of the club, which has been contributed by the members themselves or the members concerned earlier. the drinks and beverages are purchased from the market by the club as agent of the members, obviously upon payment of sales tax wherever exigible, and then presented before the members and in order to make good depleted fund of the club because of purchase, such payment is released. since the transaction is huge and expenses is enormous, maintenance of record is automatic necessity for all purposes because the income and expenditure of the club have to be accounted for to the members who are the soul of the club. the members collectively is the real life, and the club is a superstructure only, therefore, mere fact of presentation of bills and non-payment thereof consequently striking off membership of the club does not bring about any change in law. sequelly element of mutuality is not obliterated though it has been unconvincingly argued that because of non-payment a member is removed and/or expelled therefore it is nothing but transaction for sale of goods if it is taken as its face value. the argument may be attractive apparently but while considering deep into the matter we do not find any substance in it.14. the supreme court decision as rightly recorded by the learned tribunal in case of automobile association of eastern india [2002] 40 sta 154 is not a precedent to be followed. the supreme court has not decided as to whether the members' club is also included by the definition or not. the supreme court has not decided as to whether the concept of mutuality of a members' club whether incorporated or unincorporated is done away with by the constitutional amendment. we approve observation of the learned tribunal that the said judgment is not a binding precedent as no argument was advanced and no ratio is decided which is merely a passing observation.15. accordingly the aforesaid order is not really judgment on issue rather sub-silentio. then question remains whether the amended provision of article 366, sub-clauses (e) and (f) of clause (29a) is rendered infructuous in case of a club or body of association. to our mind it is not so because there are large number of clubs which may be proprietary one and further which also deals with the outsider and in this case certainly sales tax is leviable. in a case where the club whether incorporated or unincorporated is exclusively run and conducted by the members and members only and the members participate in the contribution of the fund of the club and the surplus thereof sale tax is not leviable. in this case concept of mutuality is still applicable and by the amendment of the constitution the same has not been done away with. andhra pradesh and madras high courts in those two cases have not dealt with the aforesaid aspect.16. we with great respect cannot accept the proposition laid down by their lordships as an absolute proposition of law on the subject. we are thus unable to accept the contention of mr. gupta in this case advanced basing aforesaid judgments.17. mr. bajoria has rightly contended that going by the language in the definition of 'sale' in the act as well as the amended provision of the constitution the concept of mutuality is not obliterated. in the clauses (e) and (f) had there been specific mention of supply irrespective of payment, the provision of the said act would have been applicable and the mutuality concept could be said to have been obliterated.18. we thus dismiss this application.19. however, no order as to costs.manik mohan sarkar j.20. i agree.