Contact us   Feedback   Subscription   New User   Login      
Tax Management India .com
TMI - Tax Management India. Com
Extracts
Home List
← Previous Next →

2016 (7) TMI 473 - KERALA HIGH COURT

2016 (7) TMI 473 - KERALA HIGH COURT - 2016 (44) S.T.R. 377 (Ker.) - Tour operator services - giving on hire the vehicle - Adjudicating while confirmed the demand observed that, they are not mere owners of contract carriages let on hire to customers. The staff of the carriage including the driver is operating the trips and tours. The carriages are used for marriage parties, excursions and group trips. It is not a mere instance of hiring of contract carriage. - The main contention urged by the pe .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ched to the observation made by the learned Single Judge. Therefore I do not think that the judgment in Ext.P2 had in any way curtailed the right of the assessing authority to consider on facts as to whether the petitioners are tour operators or not. - Further, the authority had come to a finding that petitioners are not mere hirers. Petitioners are not persons who merely hire the vehicle, whereas it amounts to operation of the tour itself. - That apart, the following words in the statute ďa .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

een considered and the authorities had come to a proper decision which cannot be termed as illegal or perverse - Decided against the petitioner. - W.P. (C) No. 39 of 2011 - Dated:- 22-6-2016 - A.M. SHAFFIQUE, J. FOR THE PETITIONER : ADVS.SRI.V.M.KURIAN, SRI.MATHEW B. KURIAN, SRI.K.T.THOMAS FOR THE RESPONDENT : ADV. SRI.THOMAS MATHEW NELLIMOOTTIL,SC,CB EX JUDGMENT This writ petition is filed challenging Ext.P14 order passed by the Assistant Commissioner of Central Excise and Service Tax, Ernakula .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

itioner claims to be engaged in the business of letting contract carriage vehicle on hire as per the requirements of customers. According to the petitioners, they are not providing any other service other than giving on hire the vehicle. 3. Steps were taken by the Superintendent of Excise, Alleppey for registering the petitioners under the category of Tour Operator during 2004-05. Petitioners filed WP(C) No. 36353/2004. By Ext.P1 judgment dated 29/8/2005, this Court disposed of the writ petition .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ax along with interest as per order dated 30/11/2005. Petitioner preferred an appeal against the aforesaid order as Appeal No.116/2006. The appeal was allowed as per order dated 26/5/2006 remitting the matter back to the assessing authority to conduct a detailed enquiry and collect evidence to establish that the petitioners are just owners of contract carriage, letting out vehicles on hire and are not engaged in any other service as per the observation of the High Court. After the matter was rem .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

anded the matter with the following remark. The lower authority is directed to conduct a detailed enquiry and collect evidence to establish whether the appellant are just owners of contract carriages, letting out vehicles on hire and are not engaged in any other service in which case, as per observations of the Hon'ble High Court there would not be any liability at all. The appellants are allowed to make any fresh submissions, in support of their contentions, before the lower authority. Agai .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

of Motor Vehicle Act and has, to my view, correctly by referring to two judgments one of Hon'ble Madras High Court and other of Hon'ble Karnataka High Court come to the conclusion that contract carriage comes under the definition of Tour Operator under Section 65(105) of Finance Act, 1994. But, this appears to be going beyond the scope of the remand order, which again was entirely guided by a judgment of Hon'ble Kerala High Court in T.V.Thomas v. UOI (OP No.10865/2003). Hon'ble M .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

Again show cause notice was issued to the petitioners and Ext.P14 order had been passed. It is submitted that though an appeal is provided, there is no reason to challenge the order on merits as the only question to be considered is whether petitioners come within the framework of 'tour operator' during the relevant time. Hence, this writ petition is filed inter alia contending that the order had been passed contrary to the directions issued by the two appellate authorities. 4. Counter a .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

odation, site seeing or other similar services. It is stated that after the amendment, effective from 10/9/2004, tour conducted by any mode of conveyance was covered under the levy. It is further stated that even for the period prior to 10/9/2004, contract carriages were covered under the levy since the definition of a tourist vehicle as per Section 2(43) of Motor Vehicles Act, 1988 meant a contract carriage as well. In fact, the present definition of 'tour operator' as laid down under S .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ehicles Act, 1988 or the rules made thereunder . Prior to 16/5/2008, and effective from 10/9/2004, the definition reads as under; Tour operator means any person engaged in the business of planning, scheduling, organizing or arranging tours (which may include arrangements for accommodation, sightseeing or other similar services) by any mode of transport, and includes any person engaged in the business of operating tours in a tourist vehicle, covered by a permit, granted under the Motor Vehicles A .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

Vehicles Act, 1988 or the Rules made thereunder, such persons fall under the category of tour operator and is liable to pay tax. 5. In Ext.P14 order, it was held that the assessee was operating the tours conducted on the vehicles owned by them. They are not mere owners of contract carriages let on hire to customers. The staff of the carriage including the driver is operating the trips and tours. The carriages are used for marriage parties, excursions and group trips. It is not a mere instance o .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

had been taken by the petitioners to prefer an appeal as contemplated under the statutory provisions. 6. The main contention urged by the petitioners is based on Ext.P2 judgment of this Court. Ext.P2 judgment will not render any assistance to the petitioners. It was only an observation and cannot bind the department to form an opinion that merely for the reason that the vehicles are given for hire, service tax cannot be imposed. Even otherwise, this Court held in the said judgment as under; Peti .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

10/9/2004 onwards. I feel if the petitioners are just owners of contract carriages letting vehicles on hire and are not engaged in any other service, then of course there would not be any liability at all. This is therefore a matter which requires enquiry and adjudication as to whether petitioners are engaged in rendering service as tour operators with specific reference to statutory provision prior to and after the amendment. The liability to tax with reference to statutory provisions can be d .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

 

 

 

 

 



|| Home || Acts and Rules || Notifications || Circulars || Schedules || Tariff || Forms || Case Laws || Manuals ||

|| About us || Contact us || Disclaimer || Terms of Use || Privacy Policy || TMI Database || Members || Site Map ||

© Taxmanagementindia.com [A unit of MS Knowledge Processing Pvt. Ltd.] All rights reserved.

Go to Mobile Version