JUDGMENT :

SAMEER JAIN, J.

1. The present Sales Tax Revisions/References (for short “STRs”) have been filed by the revenue, under Section 84 of the Rajasthan Value Added Tax Act, 2003 (for short “RVAT Act”) read with Section 86 of the Rajasthan Sales Tax Act, 1994 (for short “RST Act”), assailing the impugned order dated 23.18.2019 passed by the Rajasthan Tax Board, Ajmer and involves the following question of law:

“(i) Whether in the facts and circumstances of the case the Rajasthan Tax Board was justified in law in holding that the expenses charged are separate than the food charges despite only one coupon of composite amount issued at the entry by the respondent.

(ii) Whether in the facts and circumstances of the case the Rajasthan Tax Board was justified in law in deleting the tax and interest without appreciating the provisions pertaining to “Sale” as contemplated u/s 2(35) of the Act and “Sale Price” as contemplated u/s 2(36) of the Act.”

2. Since common issue is involved in all these STRs, STR No. 63/2020 is taken as lead file to peruse the facts and with the consent of the parties, all these STRs were heard together.

3. Learned counsel for the revenue submits that a survey was conducted of the premises of the assessee on 14.07.2010 wherein it was discovered that the assessee, which is engaged in the business of restaurants and resorts, was issuing ‘entry coupon’ at the entry gate of the premises to its customers and charging Rs. 350/- per adult and Rs. 175 per minor. The said charge, as per the entry coupon, is only adjustable against food. However, the assessee was only paying VAT on Rs. 250 (in case of adults) or Rs. 125 (in case of children) and the remaining amount, i.e. Rs. 100 (in case of adults) and Rs. 50 (in case of children) was reflected separately in the assessee’s books of accounts under the head ‘Charges for generation of Cultural Receipts, Staff, Maintenance, Adm. Expenses’ and no VAT was being paid on the same, which amounts to evasion of tax. Accordingly, the Assessment Order dated 25.02.2011 was passed and tax along with interest and penalty was imposed upon the assessee. Upon appeal, the Deputy Commissioner (Appeal), vide order dated 23.03.2012, maintained the levy of tax and interest but deleted penalty imposed under Section 61 of RVAT Act. Thereafter, the Tax Board allowed the appeal filed by the assessee and set aside the levy of tax and interest also.

4. Learned counsel for the revenue submits that the assessee was separately charging for other services, like animal riding, astrology services and other recreational activities, inside the premises and the entry coupon specifically contained the words “adjustable in food only.” Therefore, relying upon definition of ‘sale’ as contained in Section 2 (35) and definition of ‘sale price’ as contained in Section 2 (36) of the RVAT Act, learned counsel for the revenue contends that VAT is payable on the entire amount (Rs. 350 for adults and Rs. 175 for children) and that the assessee cannot split up the amount charged for sale of food, even if the assessee provides certain services in addition to food as VAT has to be paid on total amount charged.

5. Learned counsel for the revenue has also emphasized the fact that the assessee was not issuing invoices to the customers in the regular course of business and only issued the invoices when the customer specifically demanded it.

6. Learned counsel for the revenue has relied upon Apex Court judgments of K. Damodarasamy Naidu and Bros. and Others vs. State of Tamil Nadu and Others, (2000) 1 SCC 521 and Idea Mobile Communication Ltd. vs. C.C.E. and C. Cochin, (2011) 12 SCC 608 in support of his contention that VAT is payable on total amount charged for food, even if some bundled services, like recreational activities, music and dance shows etc., are provided along with food.

7. Per contra, learned counsel for the assessee submits that the entire case of the revenue proceeds on a wrong factual premise that the coupons were