Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR SATURDAY, THE20H DAY OF DECEMBER201429TH AGRAHAYANA, 1936 WP(C).No. 12069 of 2010 (G) ---------------------------- PETITIONER(S): -------------------------- THE SECRETARY TRICHUR TENNIS TRUST, KINATTINGAL TENNIS ACADEMY PUNKUNNAM.PO., TRICHUR-2, REPRESENTED BY ITS SECRETARY MUHAMMED BASHEER.M.H. BY ADVS.DR.K.B.MUHAMED KUTTY (SR.) SRI.K.M.FIROZ RESPONDENT(S): ---------------------------- 1. INTELLIGENCE OFFICER (I.B) DEPARTMENT OF COMMERCIAL TAXES, TRICHUR-4.
2. THE STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT TAXES DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM.
3. THE COMMERCIAL TAX OFFICER (LUXURY TAX) DEPARTMENT OF COMMERCIAL TAXES, TRICHUR. 688001 4. THE DEPUTY TAHSILDAR TRICHUR. 688 001. R3 & R4 ARE IMPLEADED AS PER ORDER
DATED1707/2012 IN I.A.NO.9548/2012. R1-R4 BY GOVERNMENT PLEADER SMT.LILLY.K.T. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON2012-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C).NO.12069/2010 APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE NOTICE DATED159.2006 ISSUED BY THE FIRST RESPONDENT. EXT.P2: COPY OF THE NOTICE DATED610.2009. EXT.P3: COPY OF THE IMPOUNDED ACCOUNT BOOKS BY ISSUING RECEIPT DATED610.2009. EXT.P4: COPY OF THE NOTICE. EXT.P5: COPY OF THE RECEIPTS ISSUED FOR THE PAYMENTS BY THE FIRST RESPONDENT DATED3112.2009. EXT.P6: COPY OF THE RECEIPTS ISSUED FOR THE PAYMENTS BY THE FIRST RESPONDENT DATED3112.2009. EXT.P7: COPY OF THE RECEIPTS ISSUED FOR THE PAYMENTS BY THE FIRST RESPONDENT DATED3112.2009. EXT.P8: COPY OF THE RECEIPTS ISSUED FOR THE PAYMENTS BY THE FIRST RESPONDENT DATED3112.2009. EXT.P9: COPY OF THE CONSTITUTION AND RULES. EXT.P10: COPY OF THE PENALTY PROCEEDINGS DATED96.2010 FOR THE YEAR200607. EXT.P11: COPY OF THE PENALTY PROCEEDINGS DATED96.2010 FOR THE YEAR200708. EXT.P12: COPY OF THE PENALTY PROCEEDINGS DATED96.2010 FOR THE YEAR200809. EXT.P13: COPY OF THE PENALTY PROCEEDINGS DATED96.2010 FOR THE YEAR200910. EXT.P14: COPY OF THE PENALTY PROCEEDINGS DATED96.2010 FOR THE YEAR201011. EXT.P15: COPY OF THE DEMAND NOTICE DATED159.2010 FOR THE YEAR2006 07. EXT.P16: COPY OF THE DEMAND NOTICE DATED159.2010 FOR THE YEAR2007 08. W.P.(C).NO.12069/2010 EXT.P17: COPY OF THE DEMAND NOTICE DATED159.2010 FOR THE YEAR2008 09. EXT.P18: COPY OF THE DEMAND NOTICE DATED159.2010 FOR THE YEAR2009 10. EXT.P19: COPY OF THE DEMAND NOTICE DATED159.2010 FOR THE YEAR2010 11. RESPONDENTS EXHIBITS: NIL //TRUE COPY// P.S.TO JUDGE A.K.JAYASANKARAN NAMBIAR, J.
------------------------------- W.P.(C).NO.12069 OF2010(G) ----------------------------------- Dated this the 20th day of December, 2014
JUDGMENT
The petitioner is the Secretary of the Trichur Tennis Trust, which is a Society registered under the Travancore Cochin Literary and Charitable Societies Registration Act, 1955. It is the case of the petitioner that, pursuant to an inspection of the premises of the Club, the respondent authorities under the Kerala Tax on Luxuries Act, 1976, hereinafter referred to as the 'Act', had issued notices to the petitioner asking him to take registration under the Act and pay luxury tax in accordance with Sections 4 and 4(2A) of the Act. On receipt of the said notices, the petitioner approached the 1st respondent and remitted the necessary compounding fee for the alleged offences committed by him for the assessment years 2006-07, 2008-09 and 2009-10. Exts.P5 to P8 are produced to substantiate the contention that the compounding fee in respect of the assessment years was paid by the petitioner. Thereafter, the petitioner was served with Exts.P10 to P14 orders imposing penalty for the assessment years 2006-07 to 2010-11. Ext.P15 to Ext.P19 are the demand notices issued to the petitioner pursuant to the aforementioned penalty orders. While the petitioner could have W.P.(C).NO.12069/2010 2 availed the alternate remedy by way of appeal against Exts.P10 to P14 orders, the petitioner chose to approach this Court through the present writ petition insofar as he also had a challenge against the validity of levy of luxury tax under Section 4 in respect of the Club, especially when Section 4(2A) of the Act had been introduced to provide for a levy of luxury tax specifically in respect of Clubs.
2. A counter affidavit has been filed on behalf of the 3rd respondent wherein the circumstances leading to the passing of Exts.P10 to P14 orders have been narrated. Reference is also made to the decision of this Court in Trivandum Club v. Sales Tax Officer (Luxury Tax) - [2012 (3) KLT682, wherein it was held that a Club would also come within the charging provision of Section 4 of the Act. It is also pointed out that the Division Bench in Madhavaraja Club v. Commercial Tax Officer (Luxury Tax), Palakkad & Others - [(2013) 21 KTR621(Ker)] has also held that in respect of a Club, the levy of luxury tax under Sections 4 and 4(2A) can simultaneously co-exist.
3. I have heard Sri.K.B.Mohammed Kutty, the learned senior counsel appearing on behalf of the petitioner as also Smt.Lilly.K.T., W.P.(C).NO.12069/2010 3 the learned Government Pleader appearing on behalf of the respondents.
4. On a consideration of the facts and circumstances of the case as also the submissions made across the Bar, I find that in the writ petition, the challenge of the petitioner was primarily against the validity of levy of luxury tax under Section 4 of the Act on a Club in circumstances where there was a specific charging section, namely, Section 4(2A), to deal with levy of luxury tax on Clubs. The petitioner does not, however, intend to pursue the said contention in the present writ petition in view of the decision of the Division Bench of this Court referred to above. It is submitted that the right to pursue the said challenge in the writ petition may be reserved to the petitioner to be pursued in a suitable case. In that view of the matter, I feel that the only remaining grievance of the petitioner in the writ petition is against Exts.P10 to P14 orders of penalty that have been passed for the assessment years 2006-07 to 2010-11. I am of the view that the remedy of the petitioner against the said orders would lie in an appeal to be preferred before the Appellate Authority under the Act. Accordingly, reserving the right of the petitioner to challenge the validity, of the levy of luxury tax under Section 4 of the Act to Clubs, I W.P.(C).NO.12069/2010 4 dispose the writ petition granting permission to the petitioner to prefer appeals before the Appellate authority against Exts.P10 to P14 orders within a period of two months from the date of receipt of a copy of this judgment. It is made clear that, if the appeals are filed within the time granted in this judgment, the Appellate authority under the Act shall consider the same on merits and pass orders thereon within a period of three months thereafter, after affording the petitioner an opportunity of being heard. It is also made clear that the proceedings, for recovery of the penalty amounts imposed by Exts.P10 to P14 orders, shall be kept in abeyance till such time as the Appellate authority passes orders in the appeals and communicates the same to the petitioner. I further make it clear that, if no appeals are preferred by the petitioner within the time granted in this judgment, the petitioner will lose the benefits granted to him by this judgment. A.K.JAYASANKARAN NAMBIAR JUDGE prp