JUDGMENT B.C. Patel, C.J.
1. In this group of references, the following two questions have been referred to this Court by the Sales Tax Tribunal at the instance of the Revenue:-
"1. The applicant having originally filed a single application seeking reference of one question relating to eleven different periods of assessments, whether the reference could validly be allowed to the applicant for all the eleven periods of assessments in question?
2. Whether the Tribunal was justified in holding that the activity of the Respondents of selling food-stuffs etc. amounted to 'sale' and the case of the Respondent did not fall within the ratio of the decision of the Supreme Court in the case of Northern India Caterers (India) Ltd; 42 STC 386?.
2. So far as question No.1 is concerned, it does not arise out of the order made by the Tribunal. It was open to the Tribunal to reject the application if it was of the opinion that separate references are required, but for the same purpose, there cannot be a question of law arising out of the impugned judgment delivered by the Tribunal and hence the same is not required to be answered.
3. So far as question No.2 is concerned, the following facts are required to be kept in mind. The dealer/appellant [M/s Departmental Catering (Northern Railways)] which is operating at New Delhi Railway Station and Parliament House has been running some special canteens besides providing catering in running trains. The Commissioner of Sales Tax vide its order dated 20.11.1963 held that the Catering Unit (Northern Railways) Baroda House, has been running business without profit motive and as such it was not a dealer. However, for subsequent assessment years, the view was changed and stand was taken that there is no profit motive in carrying on its activities and was providing facilities to its passengers and as was being run on no-profit-no-loss basis, there is no involvement of any commercial transaction and, therefore, is not liable to be taxed under the provisions contained in the Bengal Finance (Sales Tax) Act, 1941 as extended to the Union Territory of Delhi. The assessed applied for registration as a dealer under protest on or about 09.04.1970. The Assessing Authority, relying upon the decision of the Supreme Court in the case of Deputy Commercial Tax Officer, Saidapet, Madras, and Anr. v. Enfield India Ltd Co-operative Canteen Ltd: 21 STC 317 and in the case of Indian Employees' Co-operative Society Ltd v. State of Orissa & Two Ors.: 22 STC 460, held that profit motive was not essential for constituting business and held that the assessed was a dealer and accordingly taxed the assessed for a period of three years. The Appellate Authority held that the assessed was a dealer within the meaning of the term 'dealer'. Penalties were also levied for non-deposits of the amounts of tax and for non-filing of returns for certain periods. Ultimately, the Assistant Commissioner (Sales Tax) by an order dated 12.05.1975 held that in the case of the assessed for the year 1968-69, the profit motive was not necessary to constitute business and as such the assessed was a dealer. This question was not examined in detail for the assessment years 1969-70 to 1973-74 and it was observed while passing the orders for later years that the provision of raw material and finished goods and preparation of snacks and tea etc. and sale thereof is a commercial activity similar to that carried on by another person carrying on the business of sale of such goods and held that the Northern Railways in this regard would be covered by the term 'dealer'. The Tribunal, relying on the decision of the Supreme Court in the case of The Delhi Cloth & General Mills Company Ltd v. The Union of India and Anr.: 38 STC 403, held that for the purpose of sales tax, it should be understood that in a commercial sense, an organized activity is carried on with a view to earn profit or gain, unless there is any provision in the statute to the contrary. The Division Bench in the case of Income-Tax Co-operative Supply Society Ltd v. The Commissioner of Sales Tax, Delhi and Anr.: 46 STC 433 held that business can be conducted even if there is no primary or prime profit motive. The Tribunal relied on earlier decision and held that the assessed is not liable to pay the tax. It is also required to be noted at this juncture that the Tribunal failed to observe that, in that case, under the statute, there was a statutory obligation under Section 46 of the Factories Act, 1948 read with Rule 58 of the Delhi Factories Rule, 1950 to provide canteen facilities. The Court pointed out the provisions contained in Section 46 of the Factories Act, 1948 as also rule 65 (2) and 68 (1) of the Delhi Factories Act, 1950. Reading the provisions, it becomes clear that it was mandatory to provide a canteen and to serve food or drink and the other items on a non-profit basis. Not only that, the prices charged were subject to the approval of the Canteen Managing Committee. It is in view of these facts that the decision was rendered in the case of The Delhi Cloth & General Mills (supra).
4. The question referred to this Court is whether sale would not fall within the ratio of the decision of the Supreme Court in the case of Northern India Caterers (India) Ltd v. LT Governor of Delhi: 42 STC 386. In the said case, the meals were served to non-residents also in the restaurant located in the hotel Along with the persons who were residents in that hotel on exclusive terms. The Court held that service of meals to visitors in the restaurant of the appellant was not taxable under the Act and this was so whether a charge was imposed for the meal as a whole or according to the dishes separately ordered. In review, the said decision has been explained in Northern India Caterers (India) Ltd v. Lt. Governor of Delhi: 45 STC 212, wherein the Court pointed out as under:-
Further that where food is supplied in an eating-house or restaurant, and it is established upon the facts that the substance of the transaction, advanced by its dominant object, is a sale of food and the rendering of services is merely incidental, the transaction would undoubtedly be exigible to sales tax. In every case, it will be for the taxing authority to ascertain the facts when making an assessment under the relevant sales tax law and to determine upon those facts whether a sale of the food supplied is intended. The Court further pointed out the substance of transaction, the dominant object, the life-style and other telling factors must determine whether the apparent vendor did sell the goods or only supply a package of services. Was there a right to take away any eatable served, whether it be bad manners to do so or not? In the present case, the decision went on the ground that such right was absent. In cases where such a negative is not made out by the dealer--and in India, by and large, the practice does not prohibit carrying home--exigibility is not repelled."
5. In the present case, the assessed is selling the goods or eatables, food or drink, and, as such, there is no question of supply of package of services. We may point out that while the Railways charging a fare with food would be covered within the meaning of the "package of service" and in such a situation the levying of sales tax would not be in issue. Here the question is quite different. Our attention is not drawn to any provision making it mandatory for the Railways to provide such facilities for the passengers and the case has not been argued on that basis.
6. Therefore, we are of the opinion that, considering the material which is placed on record, selling of food stuffs, etc. by the assessed amounted to sale. The references are disposed of accordingly.