JUDGMENT : V.K. Bist, J. 1. These two revisions have been filed against the common judgment and order dated 23.10.2009 passed by the Commercial Tax Tribunal, Uttarakhand in Second Appeal No. 12/2005 (A.Y. 1998-99) and 13/2005 (A.Y. 1999-2000) and this Court has to deal with a common question of law and, therefore, for the sake of convenience, both the revisions are consolidated and are being decided by a common judgment. 2. Brief facts of the case, shorn of unnecessary details, are as follows:- A survey of 2nd respondent/M/s. Dehradun Club Limited was carried out by Special Investigation Branch of the then Trade Tax Department, in which it revealed that a contract was entered in between 2nd respondent and the revisionist/assessee in respect of supply of cooked food. Initially, the contract was for 3 months from 02.12.1994 and the contract was with one Surendra Singh Bisht and from 01.12.1996 to 25.07.2000, the contract was with the revisionist, and thereafter, it was given to some other person. The assessing authority by invoking Section 7(3) of U.P. Trade Tax Act, 1948 (hereinafter referred to as the Act), passed assessment order, which was based upon the amount received by the revisionist. The revisionist was assessed to the tax liability of Rs. 1,76, 750/- and Rs. 1,45,750/- respectively for the assessment years 1998-99 and 1999-2000. Two appeals were filed by the assessee and the First Appellate Authority vide order dated 22.09.2001 allowed both the appeals, set-aside the assessment order and remanded the matter to the assessing authority for fresh assessment. Against the first appellate order, the revisionist had filed appeals, which were allowed and the revisionist was declared non-assessable. Against the Tribunal’s judgment, the 2nd respondent invoked writ jurisdiction and this Court, while allowing the petition of 2nd respondent, remitted the matter back to the Tribunal for rehearing the revisionist as well as the 2nd respondent and then to decide the matter afresh in accordance with law, and the Tribunal in its part, set-aside the order passed by first appellate order and remanded the matter to the first appellate authority. The First Appellate Authority held the 2nd respondent not exigible, while the revisionist was assessed to the tax liability on the sales of cooked food and other eatables. However, the assessed taxable turnovers and tax liabilities of the revisionist were reduced by the authority to Rs. 1,37,750/- and Rs. 1,30,250/- allowing tax relief of Rs. The First Appellate Authority held the 2nd respondent not exigible, while the revisionist was assessed to the tax liability on the sales of cooked food and other eatables. However, the assessed taxable turnovers and tax liabilities of the revisionist were reduced by the authority to Rs. 1,37,750/- and Rs. 1,30,250/- allowing tax relief of Rs. 39,000/- and Rs. 15,500/- respectively. Feeling aggrieved, the revisionist preferred second appeals before the Commercial Tax Tribunal. The Tribunal vide the impugned judgment and order, dismissed the appeals preferred by the revisionist. Hence, the revisionist is before us. 3. We heard learned counsel for the revisionist/assessee, learned counsel for 2nd respondent as well as learned counsel for the Department. 4. These revisions were admitted by this Court on the following substantial questions of law:- “(A) Whether on the facts and circumstances of the case, the learned Commercial Tax Tribunal was justified in law in confirming the order passed by the assessing authority holding that the revisionist is liable to pay the tax inspite of finding recorded that the first sale is effected by the respondent no. 2? (B) Whether on the facts and circumstances of the case, the authority below was justified in law in holding that the assessee revisionist is liable to pay tax inspite of recording a finding of fact that the sale order was with the name of Dehradun Club and the sale consideration is received by Dehradun Club through its employee?” 5. Counsel for the revisionist contended that the place of business is owned by 2nd respondent; the kitchen and the appliances belonged to it; the waiters and other employees of kitchen are its employees; the order is placed in its name and the purchasers/consumers are also its members. The sale consideration is received by 2nd respondent. Further, bills were issued by the assessee/revisionist on behalf of 2nd respondent, however, payment was always received by 2nd respondent and after deducting all the amount, made the balance payment to the assessee/revisionist, which is nothing but his job-charge as well as the cost of the raw material, which is purchased on behalf of 2nd respondent. Further, bills were issued by the assessee/revisionist on behalf of 2nd respondent, however, payment was always received by 2nd respondent and after deducting all the amount, made the balance payment to the assessee/revisionist, which is nothing but his job-charge as well as the cost of the raw material, which is purchased on behalf of 2nd respondent. It is submitted that thus, from these ingredients, it reflects that 2nd respondent is the manufacturer, as defined under Section 2 (ee) of Trade Tax Act, therefore, the authorities below erred in law in holding that the assessee/revisionist is liable to pay tax in lieu of sale effected in respect of 2nd respondent. He contended that as per the findings of First Appellate Authority, the payment is made to the assessee by 2nd respondent through cheques and the cash memos and KOT are also in the name of 2nd respondent. It is submitted that as per findings of First Appellate Authority, there were two types of sales, one was credit sale i.e. the major sale and another was cash sale. He submitted that admittedly, the 2nd respondent realised the credit sale in their account and also the cash sale, and on submission of bills, payment was made to the assessee by 2nd respondent, through cheques. Further, while making payment to the assessee, the 2nd respondent deducted 12 per cent commission + water charges + electricity charges + salary of staff and after deducting all these expenses, paid rest amount to the assessee, which was his capital expenses in purchasing the raw material and his wages. He contended that as per the findings of the First Appellate Authority, in the four seized Parchas, the 2nd respondent deducted the salary of the staff; water/electricity charges and apart from it, 12 per cent was also deducted and in the bill of Rs. 63,540/-, the assessee merely received Rs. 50,164/-, which demonstrates that the amount received by the revisionist was cost of raw materials as well as his job-charge and nothing else, and the 12 per cent commission, as collected by 2nd respondent, was nothing, but a profit of the sale effected. He submitted that it is an admitted position of law that notification dated 30.11.1998 is applicable in the case in hand, where the rate of tax of cooked food is 5 per cent and tax is leviable at the point of sale to consumer. He submitted that it is an admitted position of law that notification dated 30.11.1998 is applicable in the case in hand, where the rate of tax of cooked food is 5 per cent and tax is leviable at the point of sale to consumer. Further, as per the notification, tax will be charged at the point of sale to consumer. The sale was made by waiter/employee of the 2nd respondent; cash memo/sale invoices are also with the name of 2nd respondent and the sale consideration is received by 2nd respondent, therefore, the 2nd respondent is the dealer and liable to pay tax. Banking reliance on the judgment of Hon’ble Apex Court in Commissioner of Trade Tax U.P. vs. S.S. Ayodhya Distillery and Others, reported in (2009) 19 VST 251 , he contended that notification issued under the taxing statute, tax become payable at such rate and as such point, as mentioned in the notification. And, if tax is leviable at the point of sale to consumer, the 2nd respondent issued the cash memos and supplied food to consumers, who are his members and also received the sale consideration, therefore liability to pay tax is on 2nd respondent. He contended that the assessee has no control over the sale made to the consumers, therefore the assessee cannot be made liable to pay tax. Lastly, he submitted that the revisionist received the amount for his expenses for purchasing raw materials besides his wages; rest was deducted by 2nd respondent. 6. Per contra, learned counsel for the 2nd respondent contended that 2nd respondent/M/s. Dehradun Club Limited is a limited company, and according to memorandum of association of the Club, the relevant objects, inter-alia, includes: (a) to afford to its members all the usual privileges, advantages, conveniences and accommodations of the club; (b) to promote social intercourse and to provide entertainments and healthy recreations for its members; (c) to join, amalgamate or reciprocate with any other club or association, whether incorporated or not, intended for the promotion of new objects in which the club is interested, and (d) the club incorporated under Indian Companies Act, as a Limited Company/Association formed for those purpose, and not for gains. He contended that 2nd respondent had engaged a messing contractor, namely, Surender Singh Bisht, and accordingly, a messing contract was entered on 08.12.1994 and reduced in writing on 08.04.1995, which was periodically extended upto 21st February, 2001, on the same covenants mentioned in the contract, but this messing contractor, had for some intermittent period, sub-let the contract to his brother i.e. the revisionist. As per the contract, the messing contractor was purchasing raw materials and using the kitchen/ equipments of the 2nd respondent and was serving the prepared food to the members of the club. The 2nd respondent, on its part, was realising 12 per cent commission against the messing bills on account of usage of utilities, provided to messing contractor, i.e. furniture and fixtures, fans, stabilizers and electrical appliances. The messing contractor supplied the prepared food and even the service staff was on the employment rolls of the messing contractor. The covenant establishes that all the assets of the club, including storage space, was available to the contractor and all the employees of the club had been transferred to the permanent employment rolls of the contractor. He contended that in the audited balance sheet/income & expenditure account of the club, there is no entry for sale of prepared food or purchase of raw materials, used for preparing cooked food and only entry recorded by the club, is for receipt of commission, on account of sales carried out by the messing contractor. 7. Counsel for the 2nd respondent further submitted that after the inquiry carried out by Special Investigation Branch, the 2nd respondent ensured that the messing contractor be duly registered with the Trade Tax Department, and that the arrangement is continuing, therefore, when the Department was satisfied that the messing contractor was defacto dealer; liable for registration under the Trade Tax Act, they could not consider the 2nd respondent as dealer for the past period under dispute, inasmuch as, there was no change in the covenants of the contract afterwards. He submitted that the findings of Joint Commissioner (Appeals) Trade Tax, Dehradun for the assessment years 1998-99 and 1999-2000, as also that of recorded by the Commercial Tax Tribunal, are finding of facts; remain uncontroverted in order to establish that all sales and purchases have been initiated by the messing contractor and the 2nd respondent has only been reimbursed for commission @ 12 per cent on sales, covering the usages of utilities provided to the messing contractor. 8. Learned Brief Holder appearing on behalf of the Department, on the other hand, submitted that the tax liability is accepted to both the contesting parties and it is only upon them to decide as to on which of the parties, the tax liability rests, either on the assessee or on 2nd respondent. He refrained to contend on the merits and de-merits of the case. 9. While examining facts of the case, we first found the case of revisionist correct as respondent no. 2 entered the sale in their book of account, which is always done by an assessee. But, when we minutely went through the facts of the case, we realised that it is the revisionist who is actually carrying out the business in the premises of respondent no. 2. Profit is always with sale and in the present case, the entire money has been received by sale and was given to revisionist, after deducting 12 per cent. Thus, it is the revisionist, who earned profit from sale and, therefore, has rightly been assessed. In such circumstances, if respondent no. 2 is compelled to pay tax on sale, grave injustice would be done to him. 10. We also find that while partly allowing the appeals filed by the assessee, the First Appellate Authority reduced the taxability of the assessee, holding that the assessee has done the job of purchase, manufacture and sale on the basis of oral agreement. Dehradun club is a group of members, and consumer of cooked food. The revisionist has accepted not maintaining any accounts, whereas 2nd respondent has produced the regular account book, audit report and the true photocopy of the fortnight bills produced by contractor. The 2nd respondent made available the facility of kitchen dining, kitchen order token etc. to the revisionist. Dehradun club is a group of members, and consumer of cooked food. The revisionist has accepted not maintaining any accounts, whereas 2nd respondent has produced the regular account book, audit report and the true photocopy of the fortnight bills produced by contractor. The 2nd respondent made available the facility of kitchen dining, kitchen order token etc. to the revisionist. On the ground of payment received by the assessee from the sale of the cooked food, the assessee was held as the dealer, therefore liable to pay tax. In fact, the learned First Appellate Authority has elaborately discussed and gave findings in its judgment in the following manner: “In the above case, it was clearly reveals that Sri N.S. Bisht messing contractor have received the payment as cash and through bank for the supply of cooked food for the year 98-99 and 99-2000. M/s. Dehradun club ltd. have filed the statement of the bank regarding the running payment made to the N.S. Bisht after deducting the commission and expenses, which shows that the payment is made to Mr. Bisht by cheque. The raw material was purchased by N.S. Bisht himself, and the payment of purchase was made by N.S. Bisht in cash. These fact are verified from the audit report of Dehradun Club Ltd., in which there is no mention of any amount regarding the purchase of cooked food. As far as the question of payment is concerned, Mr. N.S. Bisht accepted the receiving of the payment but did not produce the details of the amount. The cash amount received by club is not proved as revealed from the audit report produced by club. The receiving of cash payment by contractor is seems to be logical, because all the expenses regarding the manufacturing of cooked food was born by the contractor. The payment of 12% commission by club are mentioned as other income in audit report, which is Rs. 2,34,064.00/- and 2,26,177.00/- respectively. This amount was deducted by the club in lieu of facilities of kitchen, dining, and sale which is seems to be logical. On this point both the parties were also cross-examine. The payment of 12% commission by club are mentioned as other income in audit report, which is Rs. 2,34,064.00/- and 2,26,177.00/- respectively. This amount was deducted by the club in lieu of facilities of kitchen, dining, and sale which is seems to be logical. On this point both the parties were also cross-examine. Both the parties agreed deduction of 12% commission.” “The role of the N.S. Bisht is not a employee of Dehradun Club or as job worker, because Sri N.S. Bisht did not get any salary, perquisite like that of employees, and from raw material to the supply of the cooked food was done by the N.S. Bisht and the risk of the quality of the food was also N.S. Bisht, so his role was not of employee doing the job work. So clearly as the purchase of raw material and after supply on producing the bills and receiving the payment, the procedure reveals that N.S. Bisht supply the cooked food and received the payment.” “In the present case Sri N.S. Bisht have done the job of purchase, manufacture and sale on the basis of oral agreement. Dehradun club is a group of members, and consumer of cooked food. For all process Sri N.S. Bisht have accepted not maintaining any accounts, whereas Dehradun Club have produced the regular account book, audit report and the true photo copy of the fourth night bills produced by contractor. The Dehradun Club made available the facility of kitchen, dining, KOT etc. to contractor. The payment received by N.S. Bisht from the sale of the cooked food it is clear that Sri N.S. Bisht is the dealer so he is liable to pay tax.” 11. The learned Commercial Tax Tribunal, sustaining the judgment and order of First Appellate Authority has held that though the fact that Menu card, cash memos and kitchen order token were in the name of Dehradun club remains uncontroverted either by the club or by the Department, but the nature of transaction and the consideration received against the food stuff served in the club to the members, clearly indicates that the club had nothing to do in such transactions except charging of 12 per cent in lieu of the facilities/infrastructure provided to the assessee. 12. 12. Thus, by looking at the facts of the case, it is clear that the task of the club was, in fact, nothing except to allow the assessee to use the infrastructure made available by the club as well as the title of the club as it’s brand name upon all the vouchers, which were in transactions between the revisionist and the members of the club. When total money from sale after deduction as aforesaid was given to the revisionist, the question of holding respondent no. 2 liable to pay tax does not arise. Therefore, in certain circumstances, a party, though accepts payment and mentions in book of account, cannot be held liable for tax liability. This is also one of such cases. 13. Case law referred by the learned counsel for the revisionist (2009) 19 VST 251 ‘Commissioner of Trade Tax U.P. vs. S.S. Ayodhya Distillery and Others, does not help the revisionist. In that case, question for consideration was whether paddy husk and rice husk connote the same commodity or not. In the present case, the issue is entirely different and that is, whether revisionist is liable to pay tax or respondent no.2 is liable to pay tax in the circumstances of the case. 14. In view of above discussion, substantial questions of law are answered against the revisionist. Both the revisions are dismissed. 15. No order as to costs.