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TMI Blog2015 (8) TMI 1130X X X X Extracts X X X X X X X X Extracts X X X X ..... d exhibit P5 is the notice of demand for an amount of Rs. 4,09,876. This relates to the assessment year 2002-03. The main contention urged by the learned counsel for the petitioner was regarding limitation in exercising power under section 6(5) of the Act. It was contended that the assessment in respect of the assessment year 2002-2003 was reopened by invoking section 8(1) of the Act suo motu by the revisional authority and the reassessment is made. The learned single judge formed an opinion that since there is no provision or time-frame to suo motu revise the order of assessment by the revisional authority under section 8(1) of the Act, section 6(5) which provides for limitation will not apply to such proceedings. However it was observed that since an appeal was pending before the appellate authority, the petitioner could avail of the statutory remedy. It is submitted by the learned counsel for the appellant that the appeal has been decided against the appellant. But it is argued that if the question of limitation is decided in favour of the appellant, and if it is found that the very invocation of suo motu revision by the revisional authority was beyond the period of limitation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny year or has been under-assessed at a lower rate than the rate at which it is assessable or any deduction has been wrongly made therefrom, the assessing authority may at any time within a period of five years from the expiry of the year to which the tax relates, proceed to determine to the best of its judgment, the turnover which has escaped assessment to tax or has been under-assessed or has been assessed at a lower rate than the rate at which it is assessable and assess the tax payable on such turnover, after issuing a notice to the proprietor and after making such enquiry as it may deem fit." Paragraph 31 of the Suppan Chettiar's case[1958] KHC 374 reads as under:- "31. It follows from the above discussion that:- (i) When a particular assessment which has become final is sought to be reopened and reassessment is sought to be made on the assessee, any income which was not included in the original assessment and which was also not taken into consideration in making that assessment has to be held to be income which has escaped assessment, within the meaning of section 35 of the Travancore Cochin Agricultural Income-tax, so far as that assessee is concerned, and no reassess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d only on May 30, 2009 and notice was issued to exercise the power under section 8(1) only on December 10, 2008. Hence the writ appeal deserves to be allowed quashing section P2 and all further proceedings pursuant to it. In W. A. No. 520 of 2013, the writ petitioner is the appellant. The writ petition is filed seeking a declaration that certain services rendered outside the hotel are not liable to be taxed under the Kerala Tax on Luxuries Act, 1976. The petitioner also sought for quashing exhibits P4 and P7. Exhibit P4 is an order passed by the Deputy Commissioner (Appeals) with reference to the assessment years 2003-04 and 2004-05 dismissing the appeal filed by the petitioner confirming the order passed by the assessing authority revising the assessment on the ground that certain amenities and services provided in the hotel were not included in the return. Exhibit P7 is the confirmation of the findings of the appellate authority by the Sales Tax Appellate Tribunal, in the appeals filed by the petitioner. The issue involved in the above writ petition was whether the services rendered outside the premises of the hotel can be termed as luxury for which tax can be levied. According ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and other amenities and services excepting those which are excluded. This, however, is put at rate applicable per day per room. The definition of 'luxury provided in a hotel' in section 2(f) means accommodation for residence and other amenities and services provided in a hotel. When these terms are taken together, the mere prescription that the rate would be per day per room cannot be held to mean that luxury tax is leviable only on rate of charges for accommodation for residence and other amenities and services attached to that room. This will give a restrictive construction for the term 'other amenities and services' and would pin down the luxury tax levy to be confined to the charges for accommodation and amenities and services which would be offered for enjoyment irrespective of the requirement of the customer concerned. In our view that is not the manner in which the said provision stands. The rate of charges for accommodation for residence is one of the components while other amenities and services enjoyed by the customer would also be luxury provided in a hotel, though that may vary from room to room, depending upon customer's volition and requirement. W ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d excluding charges of food and liquor is one hundred and fifty rupees per day or more). 4. Levy and collection of luxury tax:- (1) Subject to the provisions of this Act, there shall be levied and collected a tax in respect of any luxury provided in a hotel, house boat, hall, auditorium or kalyanamandapam or including those attached to hotels, clubs, kalyanamandapam and places of the like nature which are rented for accommodation for residence or used for conducting functions, whether public or private, exhibition and cable operators." It is not the case of the petitioner that their customers are availing of the services of outside agencies by themselves. The "luxury" that the customers of the appellant receives from various other agencies outside the hotel are admittedly billed by the appellant. Therefore, it is a luxury which is provided by the appellant to its customers, though it is outside the premises of the hotel. Therefore while interpreting section 2(ee) and 2(f) and also the charging section 4(1), we are of the view that the word "in the hotel" as appearing in the said provision has to be read as "by the hotel" as well. The learned counsel for the appellant, however, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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