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Service Tax Not Applicable On Takeaway Orders/Parcels From Restaurants Under Finance Act: Madras High Court

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The Madras High Court ruled that the Service Tax is not applicable on food served as take away or parcels by restaurant under the Finance Act.

The Court was hearing a plea by popular restaurant chains raising concern about a liability to pay service tax under the Finance Act, 1994 on food that is taken away or collected from restaurants or eateries, in parcels.

The bench of Single Judge, Justice Anitha Sumanth observed that,

“Only those services commencing from the point where the food and drinks are collected for service at the table till the raising of the bill, are covered. This would encompass a gamut of services including arrangements for seating, décor, music and dance, both live and otherwise, the services of Maître D’Or, hostesses, liveried waiters and the use of fine crockery and cutlery, among others. The provision of the aforesaid niceties are critical to the determination as to whether the establishment in question would attract liability to service tax, and that too, only in an air-conditioned restaurant.”

Further the Court noted, “In the case of take-away or food parcels, the aforesaid attributes are conspicuous by their absence. In most restaurants, there is a separate counter for collection of the take-away food parcels. Orders are received either over telephone, by e-mail, online booking or through a food delivery service such as swiggy or zomato. Once processed and readied for delivery, the parcels are brought to a separate counter and are picked up either by the customer or a delivery service. More often than not, the take-away counters are positioned away from the main dining area that may or may not be air-conditioned. In any event, the consumption of the food and drink is not in the premises of the restaurant.”

The Court held that provision of food and drink to be taken-away in parcels by restaurants tantamount to the sale of food and drink and does not attract service tax under the Finance Act.

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