M. C. AGARWAL, J. These are revision petitions preferred by the Commissioner of Sales Tax, U. P. and raise a common controversy. They were, therefore, heard together and are disposed of by this common order. 2. Sales Tax Revision Nos. 1034 and 1035 of 1987 arise out of a common order dated May 2, 1987 passed by the Sales Tax Tribunal, Allahabad, in dealers Second Appeal Nos. 393 and 488 of 1985 for assessment years 1976-77 and 1979-80. The dealer supplied food and beverages to customers in a hotel and restaurant and claimed that the receipts on that account were for service rendered and not for sale of goods. This contention has been accepted by the Tribunal. 3. In Sales Tax Revision No. 540 of 1988 the dealer-respondent, M/s. Glaxo Laboratories ran a canteen for serving food and beverages to its employees. Under the provisions of the Factories Act, the dealer was required to maintain a canteen for its employees. Its contention was that the receipts from the supply of food and beverages to the employees was not by way of sale of goods but for rendering services. This contention has been accepted by the Tribunal vide order dated September 22, 1987 passed in Second Appeal No. 211 of 1985 for assessment year 1979-80 which is under challenge in the said revision petition. 4. In Sales Tax Revision No. 1194 of 1988 the dealer-respondent operated a residential hotel as well as a restaurant and as in other cases the dealers contention that supplying food and beverages it was only rendering services has been accepted by the Tribunal. The Tribunals order is dated May 27, 1988 passed in Second Appeal No. 55 of 1984. 5. In Sales Tax Revision No. 738 of 1989 also the respondent, Poonam Hotel, raised a similar plea in respect of receipts on account of supply of food and beverages to its customers and its contention has been accepted by the Sales Tax Tribunal, Moradabad vide order dated February 10, 1989 for assessment year 1979-80 which is under challenge in the present revision petition. 6. I have heard Sri K. M. Sahai, learned Standing Counsel for the Commissioner-revisionist and Sri Piyush Agarwal, learned counsel for the respondent in Sales Tax Revision Nos. 1034, 1035 of 1987, 540 and 1149 of 1988. In Sales Tax Revision No. 738 of 1989 no one appeared on behalf of the respondent. 6. I have heard Sri K. M. Sahai, learned Standing Counsel for the Commissioner-revisionist and Sri Piyush Agarwal, learned counsel for the respondent in Sales Tax Revision Nos. 1034, 1035 of 1987, 540 and 1149 of 1988. In Sales Tax Revision No. 738 of 1989 no one appeared on behalf of the respondent. " Sale" was defined in section 2 (h) of the U. P. Sales Tax Act as under : " 2 (h) sale means within its granunatical variations and cognate expressions, any transfer of property in goods for cash or deferred payment or other valuable consideration, but does not include a mortgage, hypothecation, charge or pledge; Explanation I.- A transfer of goods on hire purchase or other installment system of payment shall, notwithstanding the fact that the seller retains a title to any goods as security for payment of the price, be deemed to be a sale. " In the Sale of Goods Act, 1930 "sale" is defined as under : " A contract of sale of goods is a contract whereby the seller transfers or agrees to transfer the property in goods to the buyer for a price. There may be a contract of sale between one part-owner and another. " 7. The question whether supply of food by a hotelier was a sale within the meaning the Sales Tax Laws came to be considered by the honourable Supreme Court in State of Himachal Pradesh v. Associated Hotels of India Ltd. [1972] 29 STC 474; AIR 1972 SC 1131 . In that case the respondent had several hotels and restaurants and the question was whether the money received by it for supply of meals, etc. , to the customers was a consideration for sale of food and beverages or for rendering services. The honourable Supreme Court held that the transaction between a hotelier and a visitor to his hotel whereby the former receives the latter for lodging in his hotel is essentially a contract of service and where in the performance of the service and as part of the amenities incidental to that service the hotelier serves meals, such amenities being regarded as essential in all well conducted modern hotels. It was further observed that the bill prepared by the hotelier is one and indivisible, not being capable by approximation of being split up into one for residence and the other for meals and the receipts were, therefore, not liable to sales tax under the Punjab General Sales Tax Act. Earlier in Genuine Dunkerleys case [1958] 9 STC 353; AIR 1958 SC 560 the honourable Supreme Court had held that the expression "sale of goods" as used in the entries in the Seventh Schedule to the Constitution has the same meaning as in the Sale of Goods Act, 1930. That case related to a works contract in which movable goods were used for construction of immovable property by the contractor for the contractee and it was held that sales tax could not be levied on the value of those goods. Then in Northern India Caterers (India) Ltd. v. Lt. Governor of Delhi [1978] 42 STC 386 (SC); AIR 1978 SC 1591 ; 1979 UPTC 826 again a controversy about the taxability of the receipts on account of supply of food and beverages came for consideration before the honourable Supreme Court. The dealer in that case operated a hotel and meals were served to non-residents as well as residents in the restaurant located in the hotel. The honourable Supreme Court held that such receipts were by way of rendering services and not by way of sale of goods and were not taxable under the Bengal Finance (Sales Tax) Act, 1941 as extended to the Union territory of Delhi. This judgment subsequently came up for review and the judgment on the review petition is reported in Northern India Caterers (India) Ltd. v. Lt. Governor of Delhi [1980] 45 STC 212 (SC); AIR 1980 SC 674 ; 1980 UPTC 326. The honourable Supreme Court explained that every receipt for supply of food and beverages could not be treated to be for services rendered and what had to be determined in each case was as to what was the dominant object in the activity. If the dominant object was rendering of services then the receipts would not be taxable but if the dominant object was the sale of food and beverages then the transaction would be treated as sale of goods though some services might have been rendered. If the dominant object was rendering of services then the receipts would not be taxable but if the dominant object was the sale of food and beverages then the transaction would be treated as sale of goods though some services might have been rendered. It was observed as under : " Indeed, we have no hesitation in saying that where food is supplied in an eating-house or restaurant, and it is established upon the facts that the substance of the transaction, evidenced by its dominant object, is a sale of food and the rendering of services is merely incidental, the transaction would undoubtedly be exigible to sales tax. In every case it will be for the taxing authority to ascertain the facts when making an assessment under the relevant sales tax law and to determine upon those facts whether a sale of the food supplied is intended. " 8. Entry 54 of List II in the Seventh Schedule of the Constitution of India placed in the State List "taxes on the sale or purchase of goods other than newspapers. subject to the provisions of entry 92-A of List I". Thus, in view of the law as laid down by the honourable Supreme Court in the aforesaid cases the States could not levy sales tax or purchase tax on the receipts for the supply of food and beverages where the dominant object was rendering of services or on the receipts for the use of movable goods in execution of indivisible works contract. Therefore, in order to enable the States to levy sale or purchase tax on such receipts the Constitution (Forty-sixth Amendment) Act, 1982 was enacted for which in the definition contained and article 366 of the Constitution of India, clause (29a) was added as under : " (29a) tax on the sale or purchase of goods includes - (a) a tax on the transfer, otherwise than in pursuance of a contract, of property in any goods for cash, deferred payment or other valuable consideration; (b) a tax on the transfer of property in goods (whether as goods or in some other form) involved in the execution of a works contract; (c) a tax on the delivery of goods on hire purchase or any system of payment by instalments; (d) a tax on the transfer of the right to use any goods for any purpose (whether or not for a specified period) for cash, deferred payment or other valuable consideration; (e) a tax on the supply of goods by any unincorporated association or body of persons to a member thereof for cash, deferred payment or other valuable consideration; (f) a tax on the supply, by way of or as part of any service or in any other manner whatsoever, of goods, being food or any other article for human consumption or any drink (whether or not intoxicating), where such supply or service, is for cash, deferred payment or other valuable consideration, and such transfer, delivery or supply of any goods shall be deemed to be a sale of those goods by the person making the transfer, delivery or supply and a purchase of those goods by the person to whom such transfer, delivery or supply is made. " 9. The said Act was operative from 3rd February, 1983. Section 6 thereof that provided for validation and exemption stands as under : " 6. " 9. The said Act was operative from 3rd February, 1983. Section 6 thereof that provided for validation and exemption stands as under : " 6. Validation and exemption.- (1) For the purposes of every provision of the Constitution in which the expression tax on the sale or purchase of goods occurs, and for the purposes of any law passed or made, or purporting to have been passed or made, before the commencement of this Act, in pursuance of any such provision, - (a) the said expression shall be deemed to include, and shall be deemed always to have included, a tax (hereafter in this section referred to as the aforesaid tax) on the supply, by way of or as part of any service or in any other manner whatsoever, of goods, being food or any other article for human consumption or any drink (whether or not intoxicating) for cash, deterred payment or other valuable consideration; and (b) every transaction by way of supply of the nature referred to in clause (a) made before such commencement shall be deemed to be, and shall be deemed always to have been, a transaction by way of sale, with respect to which the person making such supply is the seller and the person to whom such supply is made, is the purchaser, and notwithstanding any judgment, decree or order of any court, Tribunal or authority, no law which was passed or made before such commencement and which imposed or authorised the imposition of, or purported to impose or authorise the imposition of, the aforesaid tax shall be deemed to be invalid or ever to have been invalid on the ground merely that the Legislature or other authority passing or making such law did not have competence to pass or make such law, and accordingly - (i) all the aforesaid taxes levied or collected or purporting to have been levied or collected under any such law before the commencement of this Act shall be deemed always to have been validly levied or collected in accordance with law; (ii) no suit or other proceeding shall be maintained or continued in any court or before any Tribunal or authority for the refund of, and no enforcement shall be made by any court, Tribunal or authority of any decree or order directing the refund of, any such aforesaid tax which has been collected; (iii) recoveries shall be made in accordance with the provisions of such law of all amounts which would have been collected thereunder as such aforesaid tax if this section had been in force at all material times. (2) Notwithstanding anything contained in sub-section (1), any supply of the nature referred to therein shall be exempt from the aforesaid tax - (a) where such supply has been made, by any restaurant or eating house (by whatever name called), at any time on or after the 7th day of September, 1978, and before the commencement of this Act and the aforesaid tax has not been collected on such supply on the ground that no such tax could have been levied or collected at that time; or (b) where such supply, not being any such supply by any restaurant or eating house (by whatever name called), has been made at any time on or after the 4th day of January, 1972, and before the commencement of this Act and the aforesaid tax has not been collected on such supply on the ground that no such tax could have been levied or collected at that time : Provided that the burden of proving that the aforesaid tax was not collected on any supply of the nature referred to in clause (a) or, as the case may be, clause (b), shall be on the person claiming the exemption under this sub-section. (3) For the removal of doubts, it is hereby declared that, - (a) nothing in sub-section (1) shall be construed as preventing any person - (i) from questioning in accordance with the provisions of any law referred to in that sub-section, the assessment, reassessment, levy or collection of the aforesaid tax, or (ii) from claiming refund of the aforesaid tax paid by him in excess of the amount due from him under any such law; and (b) no act or omission on the part of any person, before the commencement of this Act, shall be punishable as an offence which would not have been so punishable if this Act had not come into force. " 10. " 10. After the aforesaid amendments to the Constitution of India, State of Uttar Pradesh enacted the U. P. Sales Tax (Amendment and Validation) Act, 1985 (U. P. Act No. 25 of 1985) and substituted the following definition of "sale" : " 2 (h) sale with its grammatical variations and cognate expressions, means any transfer of property in goods (otherwise than by way of a mortgage, hypothecation, charge or pledge) for cash or deferred payment or other valuable consideration, and includes - (i) a transfer otherwise than in pursuance of a contract, of property in any goods for cash, deferred payment or other valuable consideration; (ii) a transfer of property in goods (whether as goods or in some other form) involved in the execution of a works contract; (iii) the delivery of goods on hire purchase or any system of payment by instalments; (iv) a transfer of the right to use any goods for any purpose (whether or not for a specified period) for cash, deferred payment or other valuable consideration; (v) the supply of goods by any unincorporated association or body of persons to a member thereof for cash, deferred payment or other valuable consideration; and (vi) the supply, by way of or as part of any service or in any other manner whatsoever, of goods, being food or any other article for human consumption or any drink (whether or not intoxicating) where such supply or service is for cash, deferred payment or other valuable consideration. " In this Act also there was a validation provision as under : " 17. Validation.- (1) Notwithstanding any judgment, decree or order of any court or other authority, anything done or any action taken before the commencement of this section, which conforms to the provisions of the principal Act, as amended by this Act, shall be deemed to be and always to have been valid and lawful as if the provisions of this Act were in force at all material times. (2) Where, before the commencement of this section, any court or authority has, in any proceeding, made any assessment, levy or collection of any tax, or passed any order imposing any penalty air making any other demand under the principal Act, or passed any order modifying, setting aside or quashing (wholly or in part) such assessment, levy, collection, penalty or demand and such assessment or other order becomes, in consequence of the provisions of this Act, inconsistent with the provisions of the principal Act as amended by this Act, then, subject to the provisions of sub-section (3), any party to the proceeding or the Commissioner of Sales Tax may, within six months from the date of such commencement, make an application to such court or authority for a review of the assessment or order, and thereupon such court or authority may review the proceeding and make such order, varying or revising the order previously made, as may be necessary to give effect to the provisions of this Act. (3) The assessing, appellate or revising authority, as the case may be, may, within a period of one year from the commencement of this section or within the period specified in section 22 of the principal Act, whichever expires later, make any rectification in any order passed by it where such rectification becomes necessary in consequence of the amendment of the principal Act by this Act Provided that no rectification, which has the effect of enhancing the assessment, penalty or other dues, shall be made unless the authority concerned has given notice to the dealer or the person concerned of his intention to do so and has allowed him a reasonable opportunity of being heard. " 11. The Tribunals finding that the turnover in question in these cases was by way of rendering of services and not by way of sale is not challenged by the learned Standing Counsel. He contends that by virtue of the Constitution (Forty-sixth Amendment) Act and the U. P. Act No. 25 of 1985 the law stands amended retrospectively with effect from the date the Constitution was enforced and, therefore, even in the years involved in these cases the turnover in respect of receipts for supply of food and beverages by way of rendering of services has become taxable. 12. 12. He placed reliance on section 6 of the Constitution (Forty-sixth Amendment) Act, 1982 in which it has been specified that the expression "tax on the sale or purchase of goods" shall be deemed to include, and shall be deemed always to have included, a tax on the supply, by way of or as part of any service or in any other manner of goods being food or other article for human consumption or any drink and that every transaction shall be deemed always to have been a transaction by way of sale, with respect to which the person making such supply is the seller and the person to whom such supply is made is the purchaser and further that no law which was passed or made before such commencement and which imposed or authorised the imposition of, or purported to impose of the aforesaid tax shall be deemed to be invalid or ever to have been invalid on the ground merely that the Legislature or other authority passing or making such law did not have competence to pass or make such law. According to the learned Standing Counsel these provisions in sub-section (1) of section 6 aforesaid indicate that right from the commencement of the Constitution the levy of tax on supply of food and beverages even by way of rendering of services stand legalised. He also referred to sub-section (2) of section 6 in which exemption has been given to certain dealers who had not collected tax on the receipts from such supplier. 13. Learned Standing Counsel also referred to section 17 of the U. P. Sales Tax (Amendment and Validation) Act, 1985 which has been reproduced above and which validates the action taken before the commencement of this section which conforms to the provisions of the principal Act as amended by this Act and provides for rectification of the orders that are inconsistent with the provisions of the principal Act as amended by this Act. 14. 14. Then, he placed reliance on a judgment of the honourable Supreme Court in Commissioner of Sales Tax v. Northern Railway Catering Department, U. P. [1994] 95 STC 569; 1995 UPTC 17 by which the honourable Supreme Court referring to its aforesaid observations in Northern India Caterers case [1978] 42 STC 386 (SC) set aside the assessment and remitted the matter back to the Sales Tax Officer to hold the assessment proceedings afresh in accordance with law. Learned Standing Counsel also placed reliance on another judgment of the honourable Supreme Court in Moulin Rouge Pvt. Ltd. v. Commercial Tax Officer [1998] 108 STC 150; JT 1997 (9) SC 83. In that case following the insertion of clause (29a) in article 366 of the Constitution of India the Bengal Finance (Sales Tax) Act, 1941 was amended and the definition of "sale" was amended to include, inter alia, any supply by way of or as part of any service or any other manner whatsoever, of goods, being food or any other article for human consumption or any drink. This amendment was given retrospective effect and section 26-A was also inserted in the said Act providing for validation and exemption. The dealer Moulin Rouge Pvt. Ltd. filed a writ petition under article 226 of the Constitution of India alleging that it was not liable to pay sales tax in view of the aforesaid judgment of the Supreme Court in Northern India Caterers (India) Ltd. [1978] 42 STC 386. The writ petition was transferred to the West Bengal Taxation Tribunal and was dismissed in view of the amendments in the Bengal Finance (Sales Tax) Act with retrospective effect. The matter was then taken to the honourable Supreme Court and it was held that the retrospective amendments were valid. 15. As regards, the amendment to the Constitution by insertion of clause (29a) in article 366 of the Constitution of India, I am of the opinion that the provisions of the Constitution providing for the distribution of legislative power are only enabling in nature. No tax is leviable simply by insertion of the said clause (29a) or by providing for validation and exemption. The amendment of the scope of "tax on the sale or purchase of goods" only enables the State Legislatures to tax transaction with retrospective effect which were earlier not within the ordinary concept of sale. No tax is leviable simply by insertion of the said clause (29a) or by providing for validation and exemption. The amendment of the scope of "tax on the sale or purchase of goods" only enables the State Legislatures to tax transaction with retrospective effect which were earlier not within the ordinary concept of sale. It did not mean that a tax stands levied merely by the amendment to the Constitution. States which might have levied tax on transactions which were considered to be beyond the scope of "tax on the sale or purchase of goods" might be benefited from the amendment and it is the actions taken in those States for the levy of tax that stands validated by provisions of section 6. Tax on sale or purchase of goods being a State subject, every State is free to define a sale or purchase and the Constitution amendment permits the States to expand the definition of sale or purchase with retrospective effect. The Constitution, however, does not oblige a State Legislature to define sale or purchase in as wide a scope as is now contained in clause (29a ). While a State cannot enlarge the scope of sale or purchase as defined in the said clause (29a) it can certainly have a narrower definition of sale or purchase and leave out certain transactions or tax certain transactions only from the date it likes. That is why the States have amended their laws after the Constitution (Forty-sixth Amendment) Act. In my view, therefore, the provisions of this Act are only enabling and could legalise statutory provisions contained in laws of the State and no question of legalisation or validation arises and where there was no such law that required to be legalised. 16. As stated above, U. P. Sales Tax Act had its own definition of "sale" and supply of food and beverages by way of rendering of services was beyond the scope of that definition. That scope was widened by the Act No. 25 of 1985 which inserted a new definition of "sale". The State Legislature did not want to amend the definition of "sale" with retrospective effect from January 26, 1950 when the Constitution of India was adopted. On the other hand, it took a conscious decision and provided that the amended definition of sale shall be effective from February 3, 1983. The State Legislature did not want to amend the definition of "sale" with retrospective effect from January 26, 1950 when the Constitution of India was adopted. On the other hand, it took a conscious decision and provided that the amended definition of sale shall be effective from February 3, 1983. Therefore, in respect of transactions prior to that date the law as laid down by the honourable Supreme Court in Northern India Caterers case [1978] 42 STC 386 applies and transactions in which the dominant object was the rendering of services would not be taxable prior to February 3, 1983. However, all transactions of supply of food and beverages whether by way of sale or by way of rendering of services have become sale from 3rd of February, 1983 by virtue of amended definition of "sale" in the U. P. Act which is in conformity with the statutory power conferred on the State Legislature by virtue of the Constitution (Forty-sixth Amendment) Act. 17. The validation clause contained in section 17 of U. P. Act No. 25 of 1985 unequivocally reflects to the situation when it speaks of conforming or inconsistent with the provision of the principal Act as amended by this Act. The U. P. Sales Tax Act stood amended only with effect from February 3, 1983 and, therefore, only actions in respect of transactions taking place after February 3, 1983 were effected by validation clause. 18. As regards the judgment of the honourable Supreme Court in Northern Railway Catering Department [1994] 95 STC 569 the matter has been remitted back to the assessing officer and there is nothing in the judgment of the honourable Supreme Court that may show that honourable Supreme Court decided about the effect of the Constitution (Forty-sixth Amendment) Act, 1982 and U. P. Act No. 25 of 1985. A mere reference to the constitutional amendment cannot be read as a decision by the honourable Supreme Court that even transactions of supply of food and beverages by way of rendering services prior to February 3, 1983 have to be taxed. 19. A mere reference to the constitutional amendment cannot be read as a decision by the honourable Supreme Court that even transactions of supply of food and beverages by way of rendering services prior to February 3, 1983 have to be taxed. 19. I am supported in my view from a judgment of a learned single Judge of this Court in Northern India Hotels Ltd. v. Commissioner of Sales Tax [1984] 55 STC 68; 1983 UPTC 1301, which was quoted with approval by a Division Bench in Pandit Restaurant v. State of U. P. [1987] 65 STC 443; 1986 UPTC 1339. The division Bench summarised the conclusion of the learned single Judge in Northern India Hotels case [1984] 55 STC 68 as under : " 8. About the effect of the amendment made by forty-sixth Amendment 1982 a case came up for decision in this Court before honourable B. N. Sapru, J. , in Northern India Hotels Ltd. v. Commissioner of Sales Tax reported in [1984] 55 STC 68. Honourable B. N. Sapru, J. , decided a number of revisions filed under section 11 of the U. P. Sales Tax Act by the aforesaid judgment. What is material about this decision is that they were in respect of the assessment years 1975-76, 1976-77 and 1977-78. Since it is not necessary for us to recite the fact of that decision excepting to point out the years in respect of which the controversy had arisen in Northern India Hotels Ltd. s case [1984] 55 STC 68 (All.), we do not wish to narrate the same in this judgment. Honourable Sapru, J. , held : (i) Scope of the States legislative competence under entry 54 of List II of the Seventh Schedule has been widened by the addition of clause (29-A) in article 366 of the Constitution and as from that date the State Legislatures are competent to enact taxes on sale or purchase of goods by hotel and restaurant owners to their customers. (ii) Since the U. P. Sales Tax Act, 1948 could not be said to have been made, in pursuance of the expression taxes on the sale or purchase of goods as was the entry 54 of List II, hence sub-section (1) of section 6 of the Amendment Act has no application to the U. P. Sales Tax Act, 1948. (ii) Since the U. P. Sales Tax Act, 1948 could not be said to have been made, in pursuance of the expression taxes on the sale or purchase of goods as was the entry 54 of List II, hence sub-section (1) of section 6 of the Amendment Act has no application to the U. P. Sales Tax Act, 1948. (iii) The definition of the word sale in section 2 of the U. P. Sales Tax Act, 1948, having not been altered by the Amendment Act, the original definition stands. Under the original definition sales tax cannot be imposed on sales by a hotelier and in a restaurant where the dominant object of the hotelier or the restaurant owner when he effected the supply, was service. 9. The net result of the decision of the honourable B. N. Sapru, J. , was that sub-section (1) of section 6 of the Forty-sixth Amendment of the Constitution was held not to applicable to the U. P. Sales Tax Act. " 20. It was after the decision of this Court in Northern India Hotels case [1984] 55 STC 68 that the U. P. Sales Tax (Amendment and Validation) Act, 1985 (U. P. Act No. 25 of 1985) was amended and it is clear that the State of U. P. did not want to reopen the issues for the period prior to February 3, 1983. 21. In the present matters all the assessments are for the periods prior to February 3, 1983 and, therefore, during those assessment years receipts on account of supply of food and beverages by way of rendering of services were not taxable. The Tribunals orders, therefore, are in accordance with law and these revision petitions deserve to be dismissed. The revision petitions are, accordingly, dismissed. Petitions dismissed. .