(1) This is an application by the petitioner (a branch of the East India Hotels Ltd. running in the name of M/s Oberai Palace Hotel, Srinagar) impugning the orders of the Assessing Authority as upheld by the Sales Tax Commissioner, respondent 2. levying tax under the Jammu and Kashmir General Sales Tax Act, 1952 (hereinafter to be referred to as the Act) on the sale of food by the hotel to its guests during the year 1962-63, 63-64, 64-65 and 65-66. The facts giving rise to the present petition may be summarized as follows.

(2) The petitioner is conducting hotel business at Srinagar and the petitioner provides various types of amenities to the guests who stay in the hotel and the supply of food is not the only but one of the amenities for which no separate charge is levied. In other words the petitioner contends that the guests of the hotel are charged a consolidated amount for enjoying all the amenities without defining the charges for each amenity separately. The petitioner filed its turn-over on demand notice being issued by the Sales-tax authorities for the years 1962-66. In the turnover submitted by the petitioner it showed the amount of sales of food made to the guests during this period, but it claimed that such sales could not be taxed because they were not chargeable sales within the meaning of the provisions of the Act. It was further contended that S. 4 which is the charging section contemplated only a sale as contemplated by the definition given in the Sale of Goods Act and did not include within its ambit an indivisible or a consolidated sale. The same was said of S. 2 (1) which defined sale.

(3) It was further contended that the supply of food to the guests was only one of the amenities which may or may not be enjoyed by the guests and if it is not consumed by the guests they were not entitled to any remission on this account. Thus the necessary indicia or attributes of a legal sale were wholly wanting in the present transaction which was therefore not taxable.

(4) The petition has been resisted by the respondents firstly on the ground that the definition given in S. 2(1) is wide enough to include an indivisible sale, because our State legislature by virtue of its residuary power under S. 5 of the State Constitution had ample jurisdiction to legislate so as to give an extended meaning to the word sale in S. 2(1). In the other States in India this residuary power was not there and therefore they were not competent to legislate so as to give an extended meaning to the word sale as held by the Supreme Court, but so far as our Constitution was concerned it did not suffer from this infirmity. Secondly it was pointed out that the question whether the sale of food by the petitioner to its guests was an indivisible or a severable sale was essentially a question of fact and since the petitioner did not produce the necessary materials before the Sales tax authorities, the question could not be agitated in the writ petition. Finally reliance was placed by the respondents on some notifications which had empowered the Sales Tax authorities to levy tax on sale of food in hotels.

(5) In order to understand the contentions raised by the counsel for the parties, it may be necessary to deal with the admitted facts of the case. It is not disputed that the petitioner is carrying on hotel business and in the course of its business it provides amenities including food to its guests. It was also not disputed before us in the arguments that in the turnover filed by the petitioner as also in the course of arguments before the Sales tax authorities the petitioner had admitted that it had realized sale tax on the rates levied by the respondents from its customers. This aspect of the matter was explained by the petitioner on the ground that it was an internal matter and if the petitioner wrongly realized sale tax from its customers it was liable to refund the same to the customers and the State had not jurisdict