Lakelands Cruises Private ... vs State Tax Officer (Luxury Tax)
2023 Latest Caselaw 3386 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                               PRESENT
                 THE HONOURABLE MR. JUSTICE T.R.RAVI
        FRIDAY, THE 24TH DAY OF MARCH 2023 / 3RD CHAITHRA, 1945
                        WP(C) NO. 9212 OF 2021
PETITIONER:

            LAKELANDS CRUISES PRIVATE LIMITED
            NO.552, LAKELANDS BUILDINGS, NEAR PALLATHURUTHI BRIDGE,
            A.C.ROAD, SANATHANAPURAM P.O., ALAPPUZHA - 688 503
            REPRESENTED BY ITS DIRECTOR JOSEPH JOB.

            BY ADVS.
            V.DEVANANDA NARASIMHAM
            SRI.P.H.RIYAS



RESPONDENTS:

    1       STATE TAX OFFICER (LUXURY TAX)
            KERALA STATE GOODS AND SERVICE TAX DEPARTMENT,
            STONEBRIDGE, ALAPPUZHA - 688 01.

    2       THE COMMISSIONER OF STATE TAX
            KERALA STATE GOODS AND SERVICE TAX DEPARTMENT, TAX
            TOWER, KARAMANA P.O., THIRUVANANTHAPURAM - 695 002.

            BY ADV
            DR.THUSHARA JAMES - SR.GP




     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
24.03.2023, ALONG WITH WP(C).9681/2021, 9263/2021 AND CONNECTED
CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C) Nos.9212, 9263,
9681 & 9688 OF 2021
                                   2


            IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
               THE HONOURABLE MR. JUSTICE T.R.RAVI
  FRIDAY, THE 24TH DAY OF MARCH 2023 / 3RD CHAITHRA, 1945
                     WP(C) NO. 9263 OF 2021
PETITIONER:

            LAKELANDS CRUISES PRIVATE LIMITED
            NO. 552, LAKELANDS BUILDINGS, NEAR PALLATHURUTHI
            BRIDGE, A.C. ROAD, SANATHANAPURAM P.O, ALAPPUZHA
            - 688503, REPRESENTED BY ITS DIRECTOR JOSEPH JOB.

            BY ADVS.
            V.DEVANANDA NARASIMHAM
            SRI.P.H.RIYAS
            SHRI.FIBIN.F


RESPONDENTS:

    1       STATE TAX OFFICER (LUXURY TAX)
            KERALA STATE GOODS AND SERVICE TAX DEPARTMENT,
            STONEBRIDGE, ALAPPUZHA - 68801,

    2       THE COMMISSIONER OF STATE TAX,
            KERALA STATE GOODS AND SERVICE TAX DEPARTMENT,
            TAX TOWER, KARAMANA P.O, THIRUVANANTHAPURAM -
            695002.

            BY ADV
            DR.THUSHARA JAMES - SR.GP


     THIS     WRIT   PETITION    (CIVIL)   HAVING   COME   UP   FOR
ADMISSION    ON 24.03.2023,     ALONG WITH   WP(C).9212/2021 AND
CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
 WP(C) Nos.9212, 9263,
9681 & 9688 OF 2021
                                   3


            IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
               THE HONOURABLE MR. JUSTICE T.R.RAVI
  FRIDAY, THE 24TH DAY OF MARCH 2023 / 3RD CHAITHRA, 1945
                     WP(C) NO. 9681 OF 2021
PETITIONER:

            M/S. LAKELANDS CRUISES PRIVATE LIMITED
            NO.552, LAKELANDS BUILDINGS, NEAR PALLATHURUTHI
            BRIDGE, A. C. ROAD, SANATHANAPURAM P. O.,
            ALAPPUZHA - 688 503, REPRESENTED BY ITS DIRECTOR
            JOSEPH JOB.

            BY ADVS.
            V.DEVANANDA NARASIMHAM
            SRI.P.H.RIYAS
            SHRI.FIBIN.F


RESPONDENTS:

    1       STATE TAX OFFICER (LUXURY TAX)
            KERALA STATE GOODS AND SERVICE TAX DEPARTMENT,
            STONE BRIDGE, ALAPPUZHA - 688 001.

    2       THE COMMISSIONER OF STATE TAX
            KERALA STATE GOODS AND SERVICE TAX DEPARTMENT,
            TAX TOWER, KARAMANA P. O.,
            THIRUVANANTHAPURAM - 695 002.

            BY ADV
            DR.THUSHARA JAMES - SR.GP


     THIS     WRIT   PETITION    (CIVIL)   HAVING   COME   UP   FOR
ADMISSION    ON 24.03.2023,     ALONG WITH   WP(C).9212/2021 AND
CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
 WP(C) Nos.9212, 9263,
9681 & 9688 OF 2021
                                    4


             IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
                THE HONOURABLE MR. JUSTICE T.R.RAVI
  FRIDAY, THE 24TH DAY OF MARCH 2023 / 3RD CHAITHRA, 1945
                        WP(C) NO. 9688 OF 2021
PETITIONER:

             LAKELANDS CRUISES PRIVATE LIMITED
             NO.552, LAKELANDS BUILDINGS, NEAR PALLATHURUTHI
             BRIDGE, A. C. ROAD, SANATHANAPURAM P. O.,
             ALAPPUZHA - 688503, REPRESENTED BY ITS DIRECTOR
             JOSEPH JOB.

             BY ADVS.
             V.DEVANANDA NARASIMHAM
             SRI.P.H.RIYAS
             SHRI.FIBIN.F


RESPONDENTS:

      1      STATE TAX OFFICER (LUXURY TAX)
             KERALA STATE GOODS AND SERVICE TAX DEPARTMENT,
             STONE BRIDGE, ALAPPUZHA - 688 001.

      2      THE COMMISSIONER OF STATE TAX
             KERALA STATE GOODS AND SERVICE TAX DEPARTMENT,
             TAX TOWER, KARAMANA P. O., THIRUVANANTHAPURAM -
             695002.

             BY ADV
             DR.THUSHARA JAMES - SR.GP


      THIS     WRIT PETITION        (CIVIL) HAVING     COME UP    FOR
ADMISSION      ON     24.03.2023,    ALONG   WITH    WP(C).9212/2021
AND       CONNECTED    CASES,   THE     COURT   ON   THE   SAME   DAY
DELIVERED THE FOLLOWING:
 WP(C) Nos.9212, 9263,
9681 & 9688 OF 2021
                                        5



                                T.R. RAVI, J.
    ------------------------------------------------------------------
     W. P. (C). Nos.9212, 9263, 9681 & 9688 of 2021
    ---------------------------------------------------------------------------
               Dated this the 24th day of March, 2023

                                 JUDGMENT

In all these writ petitions, the petitioner has

approached this Court praying to quash the assessment

orders issued under Section 6 (2) of the Kerala Tax on

Luxuries Act, 1976.

2. According to the petitioner, the petitioner is a

private limited company, engaged in providing services on

the basis of the directions of Tour operators situated

outside and inside Kerala. The petitioner company does not

own any hotel or restaurant or home stay or its own house

boat and the nature of business is only as an agent. The

mere fact that the petitioner is making arrangements to

provide services to tourists will not make them liable to pay

Luxuries Tax under the Kerala Tax on Luxuries Act, 1976; is

the contention. Section 4 (1) of the Kerala Tax on Luxuries WP(C) Nos.9212, 9263, 9681 & 9688 OF 2021

Act, which is the charging section says that a luxury tax is

levied for the luxuries 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''. So long as the petitioner does not

own any of the properties of the nature mentioned in

Section 4, it cannot be said that the petitioner is providing

these luxuries. In the order of assessment, what is stated

is that, the petitioner has collected money from different

agencies for providing rooms and amenities to the tourists.

The order does not say that the petitioner owns the

properties. The contention raised by the petitioner is legally

correct. As long as the basic requirement of the charging

section is not available, the petitioner cannot be assessed

for luxury tax. There is nothing to show that the petitioner

owns any such properties in question. WP(C) Nos.9212, 9263, 9681 & 9688 OF 2021

In such circumstances, all these writ petitions are

allowed and assessment orders are quashed. It is made

clear that the petitioner is not liable to take registration for

luxury tax as long as they do not come within the

requirement of the charging section.

Sd/-

T.R. RAVI JUDGE ded/24.03.2023 WP(C) Nos.9212, 9263, 9681 & 9688 OF 2021

APPENDIX OF WP(C) 9212/2021

PETITIONER EXHIBITS

EXHIBIT P1 TRUE COPY OF THE CERTIFICATE OF REGISTRATION ISSUED BY THE SUPERINTENDENT OF CENTRAL EXCISE & SERVICE TAX, RANGE-1, ALAPPUZHA- 688 011 TO THE PETITIONER.

EXHIBIT P2 TRUE COPY OF THE EXPARTE ASSESSMENT ORDER DATED 14/09/20 FOR THE YEAR 2014- 15 PASSED U/S 6(2) OF THE KTL ACT BY THE 1ST RESPONDENT TO THE PETITIONER.

EXHIBIT P3 TRUE COPY OF THE APPLICATION DATED 16/01/21 REQUESTING COPIES OF THE ENQUIRY REPORTS OF ECONOMIC INTELLIGENCE WING OF THE DEPARTMENT FILED BY THE PETITIONER BEFORE THE 1ST RESPONDENT.

WP(C) Nos.9212, 9263, 9681 & 9688 OF 2021

APPENDIX OF WP(C) 9263/2021

PETITIONER EXHIBITS

EXHIBIT P1 TRUE COPY OF THE CERTIFICATE OF REGISTRATION DATED 27.08.08 ISSUED BY THE SUPERINTENDENT OF CENTRAL EXCISE AND SERVICE TAX, RANGE-1, ALAPPUZHA - 688011.

EXHIBIT P2 TRUE COPY OF THE ASSESSMENT ORDER DATED 22.09.20 FOR THE YEAR 2016-17 PASSED U/S 6(2) OF THE KLT ACT BY THE 1ST RESPONDENT.

EXHIBIT P3 TRUE COPY OF APPLICATION DATED 16.01.2021 REQUESTING COPIES OF THE ENQUIRY REPORTS OF ECONOMIC INTELLIGENCE WING OF THE DEPARTMENT FILED BY THE PETITIONER BEFORE THE 1ST RESPONDENT.

WP(C) Nos.9212, 9263, 9681 & 9688 OF 2021

APPENDIX OF WP(C) 9681/2021

PETITIONER EXHIBITS

EXHIBIT P1 TRUE COPY OF THE CERTIFICATE OF REGISTRATION ISSUED BY THE SUPERINTENDENT OF CENTRAL EXCISE AND SERVICE TAX, RANGE - 1, ALAPPUZHA - 688011 TO THE PETITIONER.

EXHIBIT P2 TRUE COPY OF THE EXPARTE ASSESSMENT ORDER DATED 14.09.20 FOR THE YEAR 2015- 16 PASSED U/S 6(2) OF THE KTL ACT BY THE 1ST RESPONDENT TO THE PETITIONER.

EXHIBIT P3 TRUE COPY OF THE APPLICATION DATED 16.01.21 REQUESTING COPIES OF THE ENQUIRY REPORTS OF ECONOMIC INTELLIGENCE WING OF THE DEPARTMENT FILED BY THE PETITIONER BEFORE THE 1ST RESPONDENT.

WP(C) Nos.9212, 9263, 9681 & 9688 OF 2021

APPENDIX OF WP(C) 9688/2021

PETITIONER EXHIBITS

EXHIBIT P1 TRUE COPY OF THE CERTIFICATE OF REGISTRATION DATED 27.08.08 ISSUED BY THE SUPERINTENDENT OF CENTRAL EXCISE AND SERVICE TAX, RANGE - 1, ALAPPUZHA - 688011.

EXHIBIT P2 TRUE COPY OF THE ASSESSMENT ORDER DATED 22.09.20 FOR THE YEAR 2017-18 PASSED U/S 6(2) OF THE KTL ACT BY THE 1ST RESPONDENT.

EXHIBIT P3 TRUE COPY OF APPLICATION DATED 16.01.21 REQUESTING COPIES OF THE ENQUIRY REPORTS OF ECONOMIC INTELLIGENCE WING OF THE DEPARTMENT FOR THE YEAR 2017-18 FILED BY THE PETITIONER BEFORE 1ST RESPONDENT.