TMI Blog2016 (6) TMI 704X X X X Extracts X X X X X X X X Extracts X X X X ..... (a), on consolidated payment basis, the proprietor would pay 8 per cent of the 50 per cent occupancy. If this occupancy is understood as actual occupancy as suggested by the petitioners, the assessee would have tax burden of 8 per cent calculated on the basis of half of the actual tariff collected during the period under consideration. On the other hand, for a proprietor opting for clause (b), he would pay tax at 12.5 per cent on the basis of actual occupancy i.e. 12.5% of the total tariff. We are informed that now the rates prescribed for clauses (a) and (b) are 6 per cent and 12.5 per cent respectively. In plain term thus, proprietor governed by clause (b) would pay more than 4 times tax payable by one governed under clause (a). Ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... On the basis of the categories so provided, the graded rate of tax is prescribed. 3. The case of the petitioners is that the tax so payable by the petitioners at the prescribed rate should be computed on the basis of 50% of the actual occupancy of the hotel rooms. The department opposes such interpretation and contends that when the petitioner accepts consolidated payment basis, the tax is to be calculated on the basis of 50% of the occupancy as per the average declared tariffs and not on the basis of the actual occupied number of rooms. 4. Before adverting to this issue, we may notice that in the past, the petitioners had been paying luxury tax as demanded by the department on the basis of its interpretation of the statutory provisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ithout framing assessment, the petitioners filed a fresh petition being Special Civil Application no.6491 of 2014 which came to be disposed of by an order dated 7.5.2014 in following terms: 4. The case of the petitioners in this petition is that for the latter period, the petitioners have filed returns under section 5 of the said Act. In terms of section 6, the Collector has to either accept the return or make assessment only after which further tax demand can be raised. 5. Since the communication issued by the Collector is only in the form of a show cause notice, we are not inclined to interfere at this stage, leaving it open for the petitioners to approach the Collector. If no reply is filed so far, it would be open for the pet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns in order to better appreciate the contentions of the petitioners. Section 2(h) of the Act defines term tax as to mean luxury tax levied and collected under the Act. Section 3 pertains to levy and collection of luxury tax. Sub-section (1) thereof reads as under: 3. Levy and collection of luxury tax (1) Subject to the provisions of this Act, there shall be levied and collected a tax on luxury provided in a hotel in respect of a room under the occupation by any person at the rate specified in the table below:- TABLE Sr Daily lodging charges Occupanc Rate of tax per room Occupancy Rate of tax 1 Where the charges for lodging are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is satisfied that the return furnished under sub-section (1) of section 5 is complete and he has no reason to believe that it is incorrect, he would assess the amount of tax due from the proprietor on the basis of such return. However, if the Collector is not so satisfied or he has reason to believe that the return is incorrect,he would proceed to frame the assessment as provided under sub-sections (2) (3) and (4) of section 6 of the Act. Such order of assessment would be appealable under section 9 of the Act. 11. In view of such statutory provisions, the contention of the petitioners is that consolidate payment on the basis of 50 per cent occupancy referred to in clause (2) and clause 3(a) of sub-section (1) of section 3 must mean actu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... therefore, carry different connotations. Through interpretation process, we cannot interpret the term occupancy to carry the same meaning as actual occupancy . When Legislature has thus, used expression occupancy in clause (a), but used expression actual occupancy in clause (b), both expressions must carry different meanings. In that view of the matter, we cannot accept the contention of the learned counsel for the petitioner that the term occupancy referred to in clause (a) must mean actual occupancy and not 50 per cent of the available rooms for rent in a given hotel. Further in clause (a) expression used is ...On the basis of 50% occupancy... the legislature has advisedly used words on the basis of and not on 50% occupan ..... X X X X Extracts X X X X X X X X Extracts X X X X
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