IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON MONDAY, THE 8TH JUNE 2009 / 18TH JYAISHTA 1931 WP(C).No. 13854 of 2009(B) ---------------------------------------- PETITIONER(S): ------------------------ M/S.KAIRALI AYURVEDIC HEALTH RESORT PVT.LTD., OLASSERY P.O., KODUMBU, PALAKKAD DISTRICT., REPRESENTED BY ITS MANAGER (OPERATIONS) SHRI.ARUN.R.S. BY ADVS. MR.T.M.SREEDHARAN, MR.V.P.NARAYANAN. RESPONDENT(S): -------------------------- 1. THE COMMERCIAL TAX OFFICER (WC & LT), PALAKKAD. 2. THE STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. BY GOVERNMENT PLEADER MR. C.K.GOVINDAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 08/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss P.R. RAMACHANDRA MENON J. ~~~~~~~~~~~~~~~~~~~~~~~ W.P. (C) No. 13854 of 2009 ~~~~~~~~~~~~~~~~~~~~~~~ Dated, this the 8th day of June, 2009 JUDGMENT The petitioner has approached this Court with the following reliefs: (i) To issue of a Writ of Certiorari or other appropriate writ, order or direction, quashing the proceedings for levy of luxury tax on the petitioner hospitals for the period prior to 1.4.2008 as the same is arbitrary, illegal and unconstitutional and violative of Article 265 and Articles 14 and 19 of the Constitution of India. (ii) To issue a Writ of Mandamus or other appropriate writ, order or direction, directing the 1st respondent to refrain from proceeding levy luxury tax on the petitioner for the period prior to 1.4.2008 (iii) To declare that the petitioner is not liable to pay luxury tax for the period prior to 1.4.2008 which is the date on which statutory coverage was effected in respect of hospitals and ayurvedic treatment centres; (iv) To stay all further proceedings pending before the first respondent under the provisions of KTL Act, pending disposal of the W.P.(C). (v) To grant such other or further reliefs, as this Hon'ble WP (C) No. 13854 of 2009 : 2 : Court may deem fit and proper in the facts and circumstances of the case, including the cost of this proceeding to the petitioner. 2. The case of the petitioner is that, notwithstanding the nomenclature of the Company, the petitioner is actually running a 'hospital' and since 'hospital' was brought within the purview of the Kerala Luxury Tax Act, 1976 only w.e.f. 1.4.2008, the petitioner is not liable to be assessed in respect of the previous period. 3. The sequence of events shows that, the petitioner, when was confronted with the notice issued by the statutory authority, he approached this Court, by filing WP(C) No. 9653 of 2009, which led to Ext.P6 judgment, permitting the petitioner to file objections in response to the notice and to have the matter finalized accordingly. The specific contentions raised by the petitioner with regard to the extent of liability and also as to the point whether any luxury tax can be levied on the petitioner prior to 2008, were also taken note of by this Court, observing that the petitioner could raise the said issues before the concerned authority, who was to consider the same. 4. However, it is brought to light that the departmental authorities happened to pass the assessment orders on the very same date of Ext.P6 judgment i.e. without considering the objections to be filed by WP (C) No. 13854 of 2009 : 3 : the petitioner, which made the petitioner to approach this Court by filing WP (C) 10841 of 2009, leading to Ext.P7 judgment, whereby the impugned order was set aside and the assessing officer was directed to finalize the proceedings only after considering the objections preferred by the petitioner. As a condition precedent, this Court also observed that the petitioner would remit a sum of Rs.5,00,000/- as specified, which is stated as complied with by the petitioner. This Court also directed the petitioner to appear before the first respondent on 30.4.2009. It is submitted by the learned counsel appearing for the petitioner that the petitioner had appeared before the first respondent on the stipulated date and filed his objections as borne by Ext.P8, Ext.P10 and Ext.P13, which are pending consideration. 5. The respondents have filed a counter affidavit, vehementally rebutting the pleadings raised from the part of the petitioner. With reference to the various documents produced along with counter affidavit as R1(a) to R1(e), it is sought to be substantiated that the petitioner's establishment cannot be regarded as a 'hospital' and that, it is actually a 'luxury retreat centre' with various amenities provided to the inhabitants, who are given accommodation on rent, which varies from Rs.2500/ per day to Rs.10,000/-per day. It is also pointed out that the facilities being provided as the alleged Ayurvedic Hospital is only WP (C) No. 13854 of 2009 : 4 : 'optional' for the inmates, who can avail of the benefit - amenity on payment of the additional amount prescribed in this regard. It is also pointed out that, subsequent to Ext.P7 judgment, the petitioner had approached the Division Bench of this Court by filing W.A. 952 of 2009, where interference was declined as per judgment dated 21.4.2009. 6. The learned Government Pleader with reference to the specific averments in the courter affidavit further submits that the petitioner subsequent to the above proceedings, had also approached the Vacation Court, Palakkad by filing a suit along with I.A. 799 of 2009 for an injunction to restrain the statutory authorities from proceeding further under the relevant provisions of the Act. It is stated that said I.A. was dismissed, whereupon I.A. 819 of 2009 was filed for appointment of an Advocate Commissioner, which is stated as pending. The learned Government Pleader also submits that the jurisdiction of Civil Court is expressly barred by virtue of Section 19 of Kerala Tax for Luxuries Act. 8. The learned counsel appearing for the petitioner submits that, suit is actually for a declaration of the status of the petitioner's establishment and hence, it will not come within the purview of the embargo placed under Section 19 of the Act. The learned counsel further submits that attempt in the Writ Petition is only to have a direction to the first respondent to decide maintainability of the WP (C) No. 13854 of 2009 : 5 : assessment with respect to the period prior to 2008 as a preliminary issue. 9. Obviously, this submission made before this Court is a 'new one', in so far as, such prayer is not reflected in the reliefs sought for. The above proposal was not raised before this Court even during the pendency of WP (C) 9653 of 2009, which led to Ext.P6 judgment, whereby the petitioner was permitted to project his case before the statutory authority. Ext.P7 judgment passed subsequently also gives no positive declaration that the said aspect has to be decided as a 'preliminary issue' by the concerned authority. The matter has admittedly become final upon dismissal of W.A 952 of 2009, filed by the petitioner challenging the Ext.P7 verdict. 10. This being the position, there is absolutely no rationale on the part of the petitioner for having approached this Court again, with the reliefs as already extracted herein before i.e. for the declaration and incidental reliefs. It appears that the petitioner has attempted to take this Court for a ride, which cannot be permitted under any circumstances. 11. In the above facts and circumstances, this Court does not find any ground to interfere with the proceedings, particularly when the petitioner has admittedly filed objections in response to the notices WP (C) No. 13854 of 2009 : 6 : issued before the first respondent and in furtherance to direction given by this Court to appear before the said respondent on 30.4.2009. The proceedings pending before the first respondent cannot be permitted to be stalled by filing present Writ Petition and the conduct of the petitioner in this regard is liable to be deprecated. No interference is called for. The Writ Petition is dismissed with cost of Rs.5000/-. It is made clear that the dismissal of the Writ Petition will not stand in the way of the first respondent in considering and deciding the issue in accordance with law and of course after giving an opportunity of hearing to the petitioner as already directed by this Court. P. R. RAMACHANDRA MENON, JUDGE kmd