M/S.Kairali Ayurvedic Health … vs The Commercial Tax Officer (Wc & … on 25 March, 2009

       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C).No. 9653 of 2009(B)


1. M/S.KAIRALI AYURVEDIC HEALTH RESORT
                      ...  Petitioner

                        Vs



1. THE COMMERCIAL TAX OFFICER (WC & LT),
                       ...       Respondent

2. THE STATE OF KERALA, REPRESENTED BY

                For Petitioner  :SRI.T.M.SREEDHARAN

                For Respondent  : No Appearance

The Hon'ble MR. Justice K.M.JOSEPH

 Dated :25/03/2009

 O R D E R
                        K. M. JOSEPH, J.
                 --------------------------------------
                  W.P.C. NO. 9653 OF 2009 B
                 --------------------------------------
                Dated this the 25th March, 2009


                           JUDGMENT

Petitioner challenges Ext.P6 notice proposing to levy

luxury tax for the years 2003 – 2004 to 2007 – 2008 and seeks a

declaration that the petitioner’s Ayurvedic Hospital is covered

by the Kerala Tax on Luxuries Act only with effect from

01.04.2008. Learned counsel for the petitioner points out that

the petitioner was registered under Ext.P5 as an Ayurvedic

Hospital only after the amendment. He would, therefore, submit

that there can be no luxury tax on the petitioner prior to 2008.

Certainly, this is an issue which the petitioner can raise before

the Authority who is bound to consider the same. Petitioner has

produced Ext.P7 notice, which is a notice under the Kerala Tax

on Luxuries Act, 1976. Petitioner submitted Ext.P8 and it is

pointed out that the said reply was accepted and there was no

WPC.9653/09B 2

further action and Ext.P6 is issued on 16.02.09. Certainly, this

is also an aspect which the petitioner can highlight before the

Officer who is bound to consider it . Merely because Ext.P6 is

issued, the Officer must remind himself that he must stay within

the four corners of the legal powers available to him under the

Act and if the petitioner shows that the Act is not applicable to

the petitioner, he is bound to drop the proceedings. The further

contention of the petitioner is that even the estimation is totally

arbitrary and it is pointed out that the petitioner has got

Accounts. These are all matters which the petitioner should

bring to the notice of the Officer who, as I have already pointed

out, is bound to consider the same and bound to drop the

proceedings, if the contentions of the petitioner are correct.

Therefore, the Writ Petition is disposed of relegating the

petitioner to file objections to Ext.P6. Petitioner is given one

month’s time from today to file objections to Ext. P6 and a

WPC.9653/09B 3

decision will be taken in the matter in accordance with law, after

affording an opportunity of hearing to the petitioner.

Sd/=
K. M. JOSEPH, JUDGE

kbk.

// True Copy //
PS to Judge