Judgment :- RAMAPRASADA RAO, J. For the years 1966-67, 1967-68 and 1968-69, the petitioner, the India Cements Employees' Canteen, Sankarnagar, Tirunelveli, was subjected to sales tax under orders of assessment passed by the respondent in each of the above writ petitions. In the first two years, final orders have been passed and for the third year, a provisional assessment has been suggested. The main contention is that the petitioner is a canteen run by the India Cements Limited, a company incorporated under the Indian Companies Act and therefore it should be deemed to be run by its employer and, in that sense, the sales, if any, effected by the canteen, but without profit-motive, should be deemed to be an activity, though commercial ex facie is exemptable under G.O. No. 2238, Revenue, dated 1st September, 1964. It is common ground that this canteen is set up under the provisions of the Factories Act of 1948. The complaint is that, though the canteen claimed expressly an exemption from the payment of sales tax on the return of such sales by the petitioner-canteen in the light of the G.O. above, the respondent in each of the years has proceeded to assess the petitioner in the usual course and such an assessment is therefore illegal and opposed to law and the provisions of the statute. The further contention of the petitioner is that the activity in question not being essentially commercial as the sales were effected in order to subserve the interests of the workers of the parent company and that the sales, even if they do not come within the purview of the G.O. as above, are not liable to be caught in the net of taxation since they are not sales either understood popularly or statutorily under the Madras General Sales Tax Act. The petitioner, without availing himself of the alternative remedy of an appeal against the final orders of assessment has come to this court, as, according to him, the respondent has no jurisdiction to pass the impugned orders, whether provisional or final, and the process under article 226 is the only remedy which could render justice to him.Though ordinarily I would have been inclined to reject these petitions on the preliminary ground that the alternative remedy was not availed of by the petitioner, though provided under the statute, yet, in the peculiar circumstance of this case, where the question is of jurisdiction as to the competency of the assessing authority to bring to tax the turnover in question, I have allowed the counsel to pursue his legal objections. As regards the last contention that the dealings indulged in by the petitioner during the three years in question cannot be terminologically called as sales as the necessary elements to constitute a sale are absent, it may not be necessary for me to express a final opinion on the question. However, I may observe that the subject is concluded by the authority of this court in Deputy Commissioner of Commercial Taxes v. Thirumagal Mills Ltd. which has been followed by the Calcutta High Court in Fort Gloster Industries Ltd. v. Member, Board of Revenue But, in the view I intend taking, I am not expressing my final view on the matter as this aspect has not been considered by the assessing authority probably for the reason that it was not fully argued before him in the manner done before me, or because the point was not taken at all before him. The other contention, which is the primary contention of the petitioner, is that it is entitled to the exemption as the facts and circumstances would come squarely within G.O. No. 2238 dated 1st September, 1964. The said G.O. runs as follows : "In exercise ....... The other contention, which is the primary contention of the petitioner, is that it is entitled to the exemption as the facts and circumstances would come squarely within G.O. No. 2238 dated 1st September, 1964. The said G.O. runs as follows : "In exercise ....... the Governor of Madras hereby exempts with effect on and from the 1st September, 1964, the tax payable under the said Act on the sales by all canteens run by an employer or by the employees on co-operative basis on behalf of the employer under a statutory obligation without profit-motive, provided that the employer subsidises at least 25 per cent of the total expenses incurred in running the canteen." * This has several limbs on the proof of which only the dealer concerned could secure an exemption under it. Firstly, the canteen should be run by an employer himself. In that case, there is no difficulty at all. Secondly, such a canteen may be run by its employees on a co-operative basis on behalf of the employer, who is under a statutory obligation to maintain such a canteen, provided however such a canteen is run without profit-motive and provided also that the employer subsidies at least twenty-five per cent of the total expenses incurred in the normal running of the canteen. The canteen referred to here is undoubtedly one whose purpose is to provide an amenity to the employees in a factory and to subserve their interests. This is indeed a welfare measure. The Factories Act of 1948 compels a management to open such a canteen so that it could serve the needs of the employees. As already stated, such a canteen can either be run by the employer or by the employees. In the instant case, it is not run by the employer. The employees are running the same, but, according to them, without profit-motive. Even then they would not be entitled to the exemption unless they satisfy the last but the important limb of the provision granting such exemption, namely, that the employer should subsidise 25 per cent of their total expenses as provided therein. Though the petitioner expressly sought exemption under the above G.O., no investigation was undertaken by the respondent as the assessing authority to find out whether the essential prerequisites for the grant of the exemption as provided in the G.O. are satisfied or not. Though the petitioner expressly sought exemption under the above G.O., no investigation was undertaken by the respondent as the assessing authority to find out whether the essential prerequisites for the grant of the exemption as provided in the G.O. are satisfied or not. As a matter of fact, a cursory reference to the G.O. is made in one of the assessment orders. The assessing officer says that the expenses incurred by the management were only estimated and furnished. This does not give a clear picture as to whether the employer in the instant case did subsidise a part of the total expenses of the canteen or not. In fact, a finding on this aspect is absolutely necessary because it is in the nature of a jurisdictional fact, which would entitle the assessing authority to decide one way or the other. If he finds that there is a subsidy as required under the G.O., the entitlement to exemption is automatic. If, however, there is no cogent material for him to act upon and conclude that the employer subsidises at least 25 per cent of the total expenses, then he has the option to reject the claim for exemption. In either view of the matter, the assessing authority in the instant case has not given a finding though there was enough material before him to render such a finding. He has of course referred to the fact that the canteen supplied refreshments in addition to the employees of the company to various other institutions and individuals referred to by him in the order dated 11th January, 1968, relating to the assessment year 1966-67. This may be or may not be true as the petitioner's case is that such supplies are only to the employees of either the parent company or its group companies and organisations. The principal point is whether there is no profit-motive behind the activity. That has not been adverted to, or found as a fact. Under the G.O. such canteens, though run by the employees on a co-operative basis on behalf of the employer, should be run under a statutory obligation, but without profit-motive. If circumstances disclose on a scrutiny of the accounts that profits are secured by such an institution, then probably the result may be otherwise. Under the G.O. such canteens, though run by the employees on a co-operative basis on behalf of the employer, should be run under a statutory obligation, but without profit-motive. If circumstances disclose on a scrutiny of the accounts that profits are secured by such an institution, then probably the result may be otherwise. I am not however concerned with this aspect as it has not been examined by the assessing authority in the light of the material placed before him when he passed the impugned orders.In this view, there are errors apparent in the orders impugned. The orders therefore have to be removed by making the rule absolute. The writ petitions are allowed, but there will be no order as to costs. The subject-matter in each of these writ petitions is remitted back to the file of the respective assessing authority and it is for him to re-examine the material already on record and find out whether the petitioner's claim for exemption is justified in law.