IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN MONDAY, THE 17TH MARCH 2008 / 27TH PHALGUNA 1929 OP.No. 13097 OF 2001(H) ----------------------- PETITIONER: M/S. TAJ GARDEN RETREAT, VARKALA, THIRUVANANTHAPURAM, REPRESENTED BY ITS CHIEF ACCOUNTS OFFICER, MR. SREEDHAR REDDY. BY ADV. SRI. .ANIL D. NAIR RESPONDENTS: 1. SALES TAX OFFICER, LUXURY TAXES, THIRUVANANTHAPURAM. 2. APPELLATE ASSISTANT COMMISSIONER OF COMMERCIAL TAXES, THIRUVANANTHAPURAM. 3. STATE OF KERALA, REPRESENTED BY ITS CHIEF SECRETARY TO GOVERNMENT, SECRETARIAT, THIRUVANANTHAPURAM. BY GOVERNMENT PLEADER SRI.TEK CHAND THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 17/03/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P. NO. 13097/2001 ORDER ON CMP NO. 20797/2001 IN O.P. 13097/2001 // DISMISSED // 17TH MARCH, 2008. SD/-, P.R. RAMAN, JUDGE. APPENDIX PETITIONER'S EXHIBITS: EXT.P1 TRUE COPY OF THE ASSESSMENT ORDER ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER DATED 27.4.1999. EXT.P2 TRUE COPY OF THE ORDER ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER DATED 10.1.2001. RESPONDENTS' EXHIBITS: NIL. // TRUE COPY // P.S. TO JUDGE. KNC/- P.R. RAMAN, J. = = = = = = = = = = = O.P. NO. 13097 OF 2001. = = = = = = = = = = = = = = DATED THIS, THE 17TH DAY OF MARCH, 2008. J U D G M E N T Petitioner is a hotel and is an assessee under the Luxury Tax Act. For the assessment year 1995-96, the petitioner was assessed to luxury tax at 10% of a total income of Rs. 44,43,619.38 rounded to Rs. 44,43,620/. In that they have included smoke sales to the tune of Rs. 6, 890/- and laundry income of Rs. 30,577/-. Challenging the inclusion of those two items, appeals were preferred. However, the appellate authority also confirmed the assessment by its order Ext.P2, against which this original petition is filed. In view of the decision of the apex court in Godfrey Philips India Ltd. v. State of U.P. (2005 ( 139) STC 537) wherein the apex court held that the State Legislature has no power to levy luxury tax on tobacco or tobacco products, the inclusion of smoke sale is unauthorised. Accordingly, to that extent, the original petition has to be allowed. However, inclusion of laundry income , in view of the decision of this Court reported in Casino Hotel v. State of Kerala ((2007) 15 KTR 485 O.P. 13097/2001 :2: (Ker.) is covered against the petitioner. In the result, the original petition is partly allowed. Inclusion of income of the petitioner from smoke sale for the purpose of luxury tax assessment will stand deleted. Ext.P1 order to that extent is quashed. P.R. RAMAN, (JUDGE) knc/- O.P. 13097/2001 :3: P.R. RAMAN, J. = = = = = = = = = O.P. NO. 13097/2001 = = = = = = = = = = J U D G M E N T DATED: 17TH MARCH, 2008.