B. R. ARORA, J. - This revision petition under section 15 of the Rajasthan Sales Tax Act, 1954, is directed against the order dated May 12, 1989, passed by the Rajasthan Sales Tax Tribunal, Ajmer.

The assessee, M/s. Radhe Shyam Rajendra Kumar, Jodhpur, is running the business of hotel and restaurant at Ghantaghar, Jodhpur, and serves eatable sweet and namkeens, etc., in its restaurant. For the assessment year 1982-83, the petitioner-assessee was assessed by the Assistant Commercial Taxes Officer, Ward II, Circle A, Jodhpur, vide assessment order dated August 20, 1983, at 5 per cent on the sales Rs. 2,32,300 and the learned Assistant Commercial Taxes Officer determined the sales tax payable amounting to Rs. 11,615 and also, imposed a penalty under section 7AA and section 16(1)(n) of the Rajasthan Sales Tax Act, 1954 (hereinafter referred to as "the Act"). Dissatisfied with the order dated August 20, 1983, passed by the Assistant Commercial Taxes Officer, Ward II, Circle A, Jodhpur, the assessee preferred an appeal before the Deputy Commissioner (Appeals-I), Commercial Taxes, Jodhpur. The Deputy Commissioner (Appeals-I), by his order dated May 14, 1984, allowed the appeal in part and held that the assessee was serving sweet, namkeens, etc., to its customers in the restaurant itself and has not collected or recovered any amount of sales tax from the customers. The Deputy Commissioner (Appeals), also found that taxable counter-sale has not been established and despite this, the tax at 5 per cent has been imposed on the entire sale. The learned Deputy Commissioner (Appeals-I), also, held that in view of the Forty-sixth Constitutional Amendment, as, also, in view of the various judgments on the point, the sales tax imposed by the assessing authority on the sale prior to February 3, 1983, was wholly illegal and could not have been imposed. The Deputy Commissioner (Appeals-I), therefore, remanded the case to the assessing authority with the direction to assess the assessee for its sales between February 3, 1983 to March 31, 1983, in the light of the Forty-sixth Constitutional Amendment and the judgments cited in the order after giving an opportunity of hearing, as required under rule 54 of the Rajasthan Sales Tax Rules, 1955. It was specifically mentioned in the order that as the assessee has not collected any sales tax on the sales made by its prior to February 3, 1983, the sales made prior to February 3, 1983, are exempted and as the sales prior to February 3, 1983, are exempted, the question regarding imposition of penalty under section 7AA and section 16(1)(n) may, also, be reconsidered and appropriate action may also be taken in that respect also. After the remand of the case, though a specific finding was given by the Deputy Commissioner (Appeals-I), to assess the petitioner-assessee only with respect to the period between February 3, 1983, to March 31, 1983, the learned Assistant Commercial Taxes Officer, Ward II, Circle A, Jodhpur, again assessed the petitioner for the whole between April 1, 1982 to March 31, 1983 and reframed the assessment as was done by him earlier and maintained the sales tax and the penalty imposed by him earlier. Dissatisfied with the order dated June 29, 1985, passed by the Assistant Commercial Taxes Officer, Ward II, Circle A, Jodhpur, the assessee preferred an appeal before the Deputy Commissioner (Appeals-I), Commercial Taxes, Jodhpur, who, by his order dated November 21, 1985, dismissed the appeal filed by the assessee. Aggrieved with an order dated November 21, 1985, passed by the Deputy Commissioner (Appeals-I), rejecting the appeal filed by the assessee, the assessee preferred an appeal under section 14 of the Sales Tax Act before the Rajasthan Sales Tax Tribunal, Ajmer, and the Tribunal, by its order dated May 12, 1989, dismissed the appeal filed by the assessee. It is against this order that the present revision petition has been filed by the assessee under section 15 of the Act.

Heard