Judgment :- CHITRA VENKATARAMAN,J. 1. Even though the Tamil Nadu Taxation Special Tribunal has passed a common order in respect of two assessment years, namely, 1977-78 and 1978-79, in the petitions filed by the assessee, the Revenue has filed only one Writ Petition against the said order dated 20.8.1998. In the circumstances, the only one Writ Petition available, hence, has to be treated for the first of the assessment year, namely, 1977-78. Hence, on record, there is no Writ Petition filed by the Revenue for the assessment year 1978-79. 2. The assessee herein is a hotelier. While making the assessment for the assessment year 1977-78, referring to G.O.Ms.Nos.1186 and 1187 dated 22.10.1982, the Assessing Authority granted the relief of waiver to the extent of tax not collected. Pending final assessment, the assessee remitted the tax collected by them as well as the additional tax. Since the said collection of tax was contrary to the condition of waiver under G.O.Ms.No.1187 dated 22.10.1982, subsequent proceedings were initiated under Section 55 of the Tamil Nadu General Sales Tax Act to withdraw the order on waiver, restricting the same to the extent of tax not passed on to the customer. While referring to the said waiver, the Assessing Authority was stated to have refunded the additional tax also on the view that there was waiver on additional tax levy too. Apart from that, when the assessee had collected tax, thereby passed on the liability, it was ineligible for the genefit of waiver under G.O.Ms.Nos.1186 and 1187 dated 22.10.1982. Thus the Assessing Officer passed an order on 31.7.1986 and confirmed the above proposal. 3. Aggrieved by the same, the assessee filed a petition before the Tamil Nadu Taxation Special Tribunal, Chennai and sought for quashing of the order passed under Section 55 of the Tamil Nadu General Sales Tax Act and to have a direction for refund of the tax paid. In considering the contention of the assessee, the Tamil Nadu Taxation Special Tribunal applied the decision of this Court reported in 63 STC 18 (Sree Annapoorna and another V. The State of Tamil Nadu and another), wherein it was held that the question of waiver would arise only if there was a tax liability. In considering the contention of the assessee, the Tamil Nadu Taxation Special Tribunal applied the decision of this Court reported in 63 STC 18 (Sree Annapoorna and another V. The State of Tamil Nadu and another), wherein it was held that the question of waiver would arise only if there was a tax liability. If the transactions were not taxable, irrespective of whether the assessee had collected tax or not and whether the assessment had become final or not, waiver was available to an assessee. Thus, following the said decision, the Special Tribunal allowed the claim of the assessee and ordered refund. Aggrieved by the same, the Revenue has come before this Court by filing the present Writ Petition. 4. A reading of the judgment of this Court reported in 63 STC 18 (Sree Annapoorna and another V. The State of Tamil Nadu and another) shows that this Court considered the scope of G.O.Nos.1186 and 1187, which qualified the waiver to cases where the assessee had not collected tax. This Court pointed out that the Constitution Amendment deeming a transaction pertaining to the hotelier as sale was inserted under Article 366 (29A) under the 46th Amendment Act of 1982 effective from 2nd February, 1983. This Court further pointed out as follows: "The latter part of clause (1) of section 6 of the Constitution (Forty-sixth Amendment) Act, 1982, only validated the law which was passed or made before the commencement of the said Act, which imposed or authorised the imposition or purported to impose or authorise the imposition of a tax on food and drinks supplied in a hotel or restaurant and if the law thus made, though would have been ultra vires on the ground of legislative competence, the defeat or want of competence was removed by the validation provision. But if the law which was in force at the relevant date did not expressly impose or authorise the imposition of a tax on the supply of food and drinks in a hotel or restaurant, the Constitution (forth-sixth Amendment) Act did not amend that law including in it a tax on the sale of food and drinks in a hotel and restaurant. The amendment only expanded the legislative entry and conferred legislative competence in respect of a matter when the State Legislature was found not competent. The amendment only expanded the legislative entry and conferred legislative competence in respect of a matter when the State Legislature was found not competent. The Act did not have the effect of altering the definition of "sale" in the various State legislations. The result of the Act was that if any State sales tax law had included any transaction of works contract, hire-purchase, supply of food and drinks in a hotel or transfer for consideration of controlled commodities, in the definition of "sale", then such a provision though lacked legislative competence at the time when it was enacted, stood validated by the Constitution (Forty-sixth Amendment) Act so that the levy and collection of tax under these provisions would become legally valid." Thus if the non-liability of tax was on the ground that the turnover relating to supply of food and drinks was not sale, then the question of the State either collecting the tax in respect of the said turnover or imposing condition in the form of waiver as done in the Government Order, did not arise. This Court pointed out that when the transaction was not liable to tax and the State could not have taxed, and by reason of the wrong assessment, tax is collected, then certainly the assessee is entitled to the refund of the amount remitted. This Court further pointed out that "If the non-liability to pay tax was on the ground that the turnover relating to the supply of food and drinks was not sale, there could be no question of the State collecting any tax in respect of that turnover." Even in a case where the assessee had collected tax, if it was not a sale, Courts have held that the transaction as not liable for payment of tax. This Court held that "though the notification used the word "waiver", it is only in the nature of giving effect to the provisions of the Act and the decision of the Supreme Court, and it does not amount to any bounty or exemption of a transaction which is liable to tax." 5. This Court held that "though the notification used the word "waiver", it is only in the nature of giving effect to the provisions of the Act and the decision of the Supreme Court, and it does not amount to any bounty or exemption of a transaction which is liable to tax." 5. This Court further held that as the supply of food and drinks during the relevant assessment years, namely, 1974-75 and 1975-76 were not sales and hence not liable to pay sales tax under the Tamil Nadu General Sales Tax Act, the question of imposing conditions for grant of waiver did not arise and hence, the conditions were to be quashed. So holding, this Court pointed out that the assesseetherein were entitled to the benefits of waiver under the G.O.Ms.Nos.1186 and 1187. 6. If we look at the facts of the case herein, admittedly, the assessment relates to the assessment year 1997-78 during which period, there was not liability of sales tax. Considering the decision of this Court reported in 63 STC 18 (Sree Annapoona and another V. The State of Tamil Nadu and another), holding the conditions in G.O.Ms.No.1187 as unsustainable and that the said decision had not been challenged by the Revenue, we have no hesitation in confirming the order of the Tamil Nadu Taxation Special Tribunal. Consequently, we hold that the assessee is entitled to the refund of the amount tax paid. Accordingly, the Writ Petition stands dismissed. No costs. Consequently, WPMP Nos.4013 of 2005 and 372 of 2011 also stand dismissed. 7. Considering the distance of time at which this order is passed dismissing the Writ Petition, in fairness to the claim of the assessee, we hope that the Revenue shall grant the refund without any further delay and within a period of ten weeks from the date of receipt of a copy of the order.