IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 04.11.2008 C O R A M : THE HONOURABLE MR. JUSTICE K. CHANDRU W.P.Nos.8400 & 13118 of 1999, 25522, 24743 to 24746, 38296 to 38302, 39555 to 39557, 39564 to 39566, 45486, 45856 to 45859 of 2002 and 10644 to 10647 of 2003 and all connected WPMPs. M/s.Coonoor Club, Coonoor-643 101, Nilgiris. .. Petitioner in WP.8400/1999, 38296 to 38302 of 2002, 10644 to 10647 of 2003 Tvl.Neyveli Lignite Corporation Limited, P.O.Neyveli-607 801, South Arcot District. .. Petitioner in WP.13118 of 1999 The Presidency Club, a Company organised under section 25 of the Companies Act, 1956, rep.by its Hony.Secretary Mr.Ranjith Jacob .. Petitioner in W.P.No.25522 of 2002 Coimbatore Cosmopolitan Club, 200, Race Course Road, Coimbatore. .. Petitioner in W.P.Nos.24743 to 24746/2002, 39555 to 39557/2002, 39564 to 39566/2002 M/s.Ootacamund Club, Udagai, The Nilgiris. .. Petitioner in WP.45486 of 2002, 45856 to 45859 of 2002 -vs- The Commercial Tax Officer, Coonoor Asst.Circle, Coonoor-2, The Nilgiris. .. Respondent in WP.No.8400 of 1999, 38296 to 38302 of 2002 & 10644 to 10647 of 2003 https://hcservices.ecourts.gov.in/hcservices/ 1. The Commercial Tax Officer, Cuddalore. 2. Special Commissioner and Commissioner of Commercial Taxes, Chennai. .. Respondents in WP.No. 13118 of 1999 1. The Government of Tamil Nadu, rep.by its Commissioner and Secretary, Commercial Taxes and Religious Endowment Board, Fort St.George, Chennai-9. 2. The Commercial Tax Officer, Egmore I-Assessment Circle, Chetpet, Chennai-31. .. Respondents in WP.25522 of 2002 1. The Commercial Tax Officer, Trichy Road Assessment Circle, Coimbatore. .. Sole respondent in WPs. 39555 to 39557 of 2002, 39564 to 39566 of 2002 2. The Appellate Assistant Commissioner (CT), Coimbatore. 3. The Joint Commissioner and Commissioner of Commercial Taxes (RP), Chepauk, Chennai -5. .. Respondents in WP.Nos. 24743 to 24746 of 2002 The Deputy Commercial Tax Officer, Udagamandalam (North), Udagamandalam, The Nilgiris. .. Respondent in WP.45486 & 45856 to 45859 of 2002 PRAYER in WP.8400 of 1999 : Petition filed under Article 226 of the Constitution of India praying for the issuance of a writ of prohibition prohibiting the respondent from insisting the petitioner to take out registration under the Tamil Nadu Tax on Luxuries in Hotels and Lodging Houses Act, 1981. PRAYER in WP.13118 of 1999 : Petition filed under Article 226 of the Constitution of India praying for the issuance of a writ of certiorarified mandamus calling for the records on the file of the second respondent in proceedings K.Dis.Q3/118664/97 and quash the order dated 23.4.1999 and direct the second respondent to exercise https://hcservices.ecourts.gov.in/hcservices/ his power under section 11 of the Act and cancel the order passed by the first respondent on 15.3.1995. PRAYER in WP.25522 of 2002 : Petition filed under Article 226 of the Constitution of India praying for the issuance of a writ of certiorari to call for the records on the file of the second respondent in Ref.Rc.1128/2002-A-5, dated 20.6.2002 and quash the proceedings as the same is vitiated by an error apparent on the face of the records. PRAYER in WP.Nos.24743 to 24746 of 2002: Petitions filed under Article 226 of the Constitution of India praying for the issuance of a writ of certiorari to call for the records on the file of the third respondent in RP.JJ2/4011, 4012, 4013 and 4014/98 (93-94)(92-93) (94- 95)(95-96) dated 01.2.2001 and quash the same. PRAYER in WP.Nos.38296 to 38302 of 2002: Petitions filed under Article 226 of the Constitution of India praying for the issuance of a writ of certiorari to call for the records of the respondent in Ref.No.2571/2002 and quash the order passed therein dated 11.9.2002 for the Assessment Years 1993-94, 1994-95, 1992-93, 1995-96, 1991-92, 1996-97 and 1997-98 respectively. PRAYER in WP.Nos.39555 to 39557 of 2002: Petitions filed under Article 226 of the Constitution of India praying for the issuance of a writ of certiorari to call for the records of the respondent in TNTL.No.032731/1999-2000, 032731/2000-2001 and 032731/2001-2002 respectively dated 13.9.2002 and quash the same. PRAYER in WP.Nos.39564 to 39566 of 2002: Petitions filed under Article 226 of the Constitution of India praying for the issuance of a writ of certiorari to call for the records of the respondent in TNTL.No.032731/1996-1997, 032731/1997-1998 and 032731/1998-1999 respectively dated 13.9.2002 and quash the same. PRAYER in WP.Nos.45486 of 2002: Petitions filed under Article 226 of the Constitution of India praying for the issuance of a writ of prohibition prohibiting the respondent from invoking the provisions of the Tamil Nadu Tax on Luxuries in Hotels and Lodging Houses Act in the case of the petitioner in respect of the assessment years 1997-98 in the light of the law laid down by the Division Bench of this Court in 104 STC 553. PRAYER in WP.Nos.45856 to 45859 of 2002: Petitions filed under Article 226 of the Constitution of India praying for the issuance of a writ of certiorarified mandamus calling for the records of the respondent in his proceedings Ref.D3.13/1998-1999, Ref.D3.13 /1999- 2000, Ref.D3.13/2000-2001, Ref.D3.13/2001-2002 respectively, dated 20.11.2002 and quash the same and direct the respondent not to invoke the provisions of the Tamil Nadu Tax on Luxuries in Hotels and https://hcservices.ecourts.gov.in/hcservices/ Lodging Houses Act in the case of the petitioner club, in the light of the law laid down by the Division Bench of this Court in 104 STC 553. PRAYER in WP.Nos.310644 to 10647 of 2002: Petitions filed under Article 226 of the Constitution of India praying for the issuance of a writ of certiorari to call for the records of the respondent in Ref.No. 2571/2002 in relation to Assessment Year 1998-1999, 1999- 2000, 2000-2001, 2001-2002 respectively on his files and quash the order dated 28.2.2003. For petitioner in WPs.8400/1999, 38296 to 38302, 45486, 45856 to 45859 / 2002, 10644 to 10647/2003 :: Mr.R.L.Ramani for M/s.Chandran Karuppiah For Petitioner :: Mr.K.Ramgopal For petitioner in WP.25522 of 2002 :: Mr.S.A.Rajan For petitioner in WP.24743 to 24746 of 2002, 39555 to 39557 of 2002, 39564 to 39566 of 2002 :: Mr.N.Inbarajan For respondents in all the writ petitions :: Mr.Haja Naziruddin, Spl.G.P.(Taxes) ***** O R D E R In this batch of writ petitions, various clubs have questioned the applicability of the provisions of the Tamil Nadu Tax on Luxuries Act, 1981 (for short, 'the Luxuries Act'). The petitioners have challenged the final Assessment Orders in some writ petitions. In other writ petitions, pre-assessment notices and notices calling upon the petitioner clubs to register themselves under the Luxuries Act were also under challenge. In one writ petition, the order passed by the revisional authority confirming the appellate order upholding the assessment was also under challenge. 2. The short question that arises for consideration is whether Section 4 of the Luxuries Act levying tax on the luxuries provided in a hotel in respect of every room under occupation by any person is applicable to the clubs having rooms rented for accommodation for its members is covered by the Luxuries Act. https://hcservices.ecourts.gov.in/hcservices/ 3. In all these cases, the clubs have disclosed their bye-laws / Articles of Association, wherein it is stated that they are rendering service to their members by collecting subscriptions, contributions and fees, which is being utilised for rendering services and amenities exclusively for and on behalf of the members without any profit margin. In essence, whether the ''doctrine of mutuality" will apply to these cases is the question. 4. In order to appreciate the demand of levy of luxury tax made by the respondents, it is necessary to refer to the following definitions found under the Luxuries Act:- ''Section 2(f) defines ''hotel" which is as follows:- ''hotel" means a building or part of a building where residential accommodation with or without board is by way of business provided for a monetary consideration and includes a lodging house. Section 2(fff) defines ''luxury" which is as follows:- ''luxury" means luxury provided in hotel or any tobacco product supplied by a tobacconist or the scheduled commodity which is for enjoyment over and above the necessities of life. Section 2(g) defines ''luxury provided in a hotel", which is as follows:- ''luxury provided in a hotel" means accommodation for residence provided in a hotel, the rate of charges for which (including charges for air-conditioning, television, radio, music, extra beds and the like but excluding charges for food, drink and telephone calls) is two hundred rupees or more. 5. A temple devasthanam by letting out its rooms for the devotees for hire would amount to a ''hotel" or a ''lodging house" and whether it is liable for tax under the Luxuries Act came up for consideration before a Division Bench of this Court in Sri Palani Dhandayuthabani Devasthanam -vs- Commercial Tax Officer, Palani Circle II, Palani reported in (2001) 124 STC 553. In paragraphs 9 and 10, it is observed as follows:- ''9. As far as the appellant is concerned, the respondent has treated it as a lodging house. For the appellant to come under the definition of ''hotel", it must be that the appellant must rent it out by way of business. Then the question is how the term ''business" has to be understood. The Act does not define the term ''business". The question would be then as to whether the term ''business" as defined in section 2(d) of the Tamil Nadu General Sales Tax Act,1959 can be applied. https://hcservices.ecourts.gov.in/hcservices/ 10. The Tamil Nadu General Sales Tax Act has been enacted with a view to consolidate and amend the laws relating to the levy of a general tax on the sale or purchase of goods in the State of Tamil Nadu. As far as the Act now in question is concerned, the object is to provide for the levy and collection of a tax on luxuries provided in hotels and lodging houses. Inasmuch as the object in these two Acts cannot be said to be one and the same, it would not be correct to read the definition of the term ''business" as given in the Tamil Nadu General Sales Tax Act, 1959 into the Tamil Nadu Tax on Luxuries in Hotels and Lodging Houses Act, 1981. This issue can be examined from another angle as well. The Tamil Nadu General Sales Tax Act was enacted in the year 1959, whereas the Act in question was enacted in the year 1981. If really the Legislature desired the definition as given in Sales Tax Act as amended by the Amendment Act,1964 to be adopted, that would have been certainly made clear in this present Act by indicating sufficiently (i.e.,) by introducing an explanation clause mentioning the same. But that has not been done. For the above reasons we are of the view that the definition of the term ''business" as given in the Tamil Nadu General Sales Tax Act, 1959 cannot be applied." 6. But another Division Bench of this Court, in the context of the membership clubs availing the doctrine of mutuality and seeking exclusion from the sales tax in the matter of supply of food and drinks to their members, considered the issue in Cosmopolitan Club and others -vs- Tamil Nadu Taxation Special Tribunal and others reported in (2002) 127 STC 475. This Court, after taking note of the definition provided under Clause 29A(f) of Article 366 of the Constitution of India read with Section 2(n)(vi) of the Tamil Nadu General Sales Tax Act, 1959, held that the said provision does not make a distinction between the incorporated bodies and the unincorporated bodies. It was also held that the judgment in Young Men's Indian Association Case reported in (1970) 26 STC 241 (SC) making a distinction does not help any more. In paragraphs 20 and 21, it is held as follows:- ''20. The question considered in the Young Men's Indian Association Case (1970) 26 STC 241 (SC), was, as already stated, whether the supply of various preparations by each club to its members involved a transaction of sale. The preparations referred to therein are refreshments food and drink both of which are expressly covered by sub-clause (f) clause (29A) of Article 366. The Court did not lay down in that judgment that the supply of goods by incorporated bodies were not sales. The court only held that in the case of members' clubs, though incorporated where service or supply is only to members, and there are no shareholders https://hcservices.ecourts.gov.in/hcservices/ who are not members, the supply of refreshments to such members would not amount to sale. 21. The supply of food, drink or refreshments having been expressly dealt with in sub-clause (f) of clause (29A), whether or not incorporated, clubs can no longer take shelter under that decision of the Apex Court to avoid the payment of sales-tax on the refreshments delivered or supplied by them to their members, for valuable consideration." 7. However, the decision of the Division Bench was taken to the Supreme Court in Civil Appeal No.3950 of 2002. The said appeal was allowed by a judgment dated 25.9.2008. The following passages found in the said judgment are relevant :- '' That decision of the Tribunal has been confirmed by the impugned judgment. Suffice it to state that in this case there was no determination by the fact finding authorities regarding the relationship between the Club and its members in the matter of supply of food and drinks; that is to say, was the Club acting as an agent of the members or did the property in food and drinks pass from the club to the members?" ''In the circumstances, we think it appropriate that the matter should go back to the Tribunal, who will decide, on facts, as to the exact relationship between the parties in the matter of supply by the Club of food and drinks to its members. In other words, the principle of mutuality and agency among other circumstances shall be gone into by the Tribunal before which the said appeal is pending. At this stage, it may be noted that the Department is also relying upon clause (vi) inserted to Section 2(n) of the 1959 Act. All these amendments have been brought on the statute book in view of the 46th Amendment of the Constitution. We grant liberty to both sides to add by way of amendment any ground open to them in law in the pending appeal before the Tribunal. All contentions that are available to both the sides are expressly kept open and they may raise the same before the Tribunal. The Tribunal shall decide the said appeal without reference to the impugned judgment of the High Court which is under appeal." (Emphasis added) 8. In the present context, it is unnecessary to go into the question whether the members' clubs are eligible to pay sales tax on the food and drinks supplied by them in the light of the constitutional backing and the subsequent amendment made to the Tamil Nadu General Sales Tax Act. The Court is only concerned with the issue relating to liability to pay luxury tax on the lodging https://hcservices.ecourts.gov.in/hcservices/ accommodation provided by the clubs on hire charges. 9. Mr.Ramani, learned counsel for the petitioners drew the attention of this Court to the judgment of the Karnataka High Court reported in (1999) 115 STC 338 in the case relating to Bangalore Golf Club -vs- Assistant Commissioner of Luxury Taxes. In that decision, the Karnataka High Court was concerned with the similar provisions found in Karnataka Tax on Luxuries Act. The Karnataka High Court, after referring to various dictionary meanings of the words ''hotel" and ''residential hotel" held that the Karnataka Luxuries Tax Act will not apply to every building where lodging accommodation is provided. It was observed that if the wide definition as suggested by the revenue is accepted, then it will be necessary to tax even Government Guest Houses and Circuit Houses. 10. In paragraph 12 of the judgment, it is observed as follows:- ''12. The charge is on the luxury provided in a hotel. The word hotel refers to a building or part of a building where accommodation is provided. Charging provisions have to be strictly construed. In a hotel normally the transient or guests are provided sleeping accommodation. Lodging accommodation must be by way of business for monetary consideration. The term ''hotel" includes lodging house, but has not included clubs. In the definition of ''hotel" under the Karnataka Tax on Luxuries (Hotels and Lodging Houses) Act, 1979, it cannot be interpreted to include every building where lodging accommodation is provided. Even in Government guest houses, circuit houses, etc.lodging accommodation is provided, but whether they can be called as hotel. In any case the term ''hotel" and ''club" are not convertible and distinction exists between them. It is no doubt true that clubs are providing luxuries and amenities as defined in section 2(5) (luxury provided in a hotel). The main activity of a club is not that of a hotel and it is only incidental that the members or guests of the members of other clubs are provided the facility for stay and food on reciprocal basis. In common as well as commercial parlance, club providing such activity would not be considered to be a hotel. That stage has not been pointed, where the club ceased to have its own existence as a club and is converted into a hotel. The business which a hotel is required to carry on for lodging accommodation, is with the intention and main object as lodging house or accommodation or building where the lodging accommodation is provided by way of carrying on business. The activity of renting the room or charging for food in a club cannot be considered to be its main activity so as to fall within the charging section". https://hcservices.ecourts.gov.in/hcservices/ 11. In fact, subsequent to the judgment referred to above, the Karnataka State Legislature has amended the definition to include clubs specifically under the Act. Therefore, in the present case, in the absence of any wider definition, by reading into the term ''hotel", lodging accommodation provided by the clubs will cause violence to the said definition. 12. Mr.Haja Naziruddin, learned Special Government Pleader placed reliance upon the definition of the term ''hotel" found in Section 2 (f). According to him, the said section has the following ingredients:- (a) a building or part of a building; (b) where residential accommodation with or without board is provided; (c) provision of accommodation is by way of business; (d) for a monetary consideration; and (e) includes a lodging house. (Emphasis added) 13. The learned Special Government Pleader, after referring to the definition, stated that the ingredients found in sub-clauses (a) (b) and (d) of Section 2(f) stand satisfied. He stated that even if the definition (a) to (d) should have the ingredients of sub-section 2(f)(c), and the activity by way of a business was not found in a club but the definition in section 2(f) (e), which includes a lodging house, will certainly cover all the clubs where residential accommodation is provided. The learned Special Government Pleader contended that the term 'Lodging House' includes wider connotation. In this regard, he referred to the judgment of the Supreme Court in Reserve Bank of India -vs- Peerless General Finance and Investment Co. Ltd. and others reported in AIR 1987 SC 1023. The learned counsel placed reliance upon paragraph 31 of the said judgment and submitted that the term ''include" is used in order to enlarge the meaning of the words or phrases not only to have the ordinary popular and natural sense of the word but also the sense which the statute wishes to attribute to it. 14. This argument overlooks the fact that as in the case of the Tamil Nadu General Sales Tax Act, they want to have a wider definition of the term ''sale" as set out in Section 2(n) and after the Constitutional amendment made to the Act, certainly the Legislature would have felt in similar way to amend the provisions of the Luxuries Act. After the judgment of the Karnataka High Court under the Luxuries Act, the Karnataka Legislature has made a specific inclusion by adding the term ''club" but such is not the case herein. In fact, even after the judgment of the Division Bench in Sri Palani Dhandayuthabani Devasthanam case (2001) 124 STC 553 (supra) (rendered on 27.9.2001), such an exercise was not done. https://hcservices.ecourts.gov.in/hcservices/ 15. This Court is not able to agree with the submission that the word ''lodging house" can have a meaning different from that of the word ''hotel" and for running a hotel, the ingredient of profit motive must be shown, whereas in the case of a lodging house, such an exclusion was deliberately made by the Legislature. It will not be out of place to refer to the definition ''Residential Hotel" found in Section 2(11) of the Tamil Nadu Catering Establishments Act, 1958. It reads as follows:- ''Residential Hotel means any premises in which the business of providing dwelling accommodation and supply of meals to any member of the public or a class of the public is carried on". 16. When the provisions of the Act was sought to be applied to a membership club (i.e. to the YMIA), a learned Single Judge of this Court after noting the object of the Act for the welfare of the employees made a liberal interpretation. However, the matter was taken to the Division Bench and that view was reversed. The said decision is reported in 1964 (2) LLJ 302 in the case relating to Young Men's Indian Association -vs- Assistant Inspector of Labour, Madras. The following passages found in page Nos.304 and 305 may be usefully extracted below:- ''Jagadisan, J., however held that as the Act was a piece of welfare legislation of promoting the interests of labour, to prevent exploitation by employers, a wider meaning should be given to the word ''business". The learned Judge referred, in this connection, to several decisions which lay down the principle that the words in a statute should be interpreted in accord with the intention of the legislature. There can be little doubt in regard to the correctness of this proposition. But at the same time, it must be recognised that the definition given in a statue provides the key to its meaning. A statute has, therefore, to be understood in the light of the definition contained in it. Generally, the scope and extent of operation of a statute has to be determined according to the language used therein. That language again has to be understood normally in the light of the definition contained in the Act. There have been instances where an apparently wide meaning imported by the definition has been controlled by the operative words of the statute. But, where there is no such question of conflict between the definition and the operative part of the statute, the normal rule is that the meaning of the statute has to be ascertained only with reference to the definition. It will not therefore be open to the Court to enlarge the scope of the statute on any assumed or presumed policy of the legislature behind the enactment. Except perhaps in cases where the statute is https://hcservices.ecourts.gov.in/hcservices/ obscure or ambiguous, external aids to the interpretation should not be resorted to. It may be that the legislation in the instant case was a welfare legislation. But that is not a reason why its operation should extend beyond its plain intendment. As we have pointed out, the definition of ''catering establishment", imports the idea of a business in supplying articles of food to the public. It is a well- settled rule of interpretation that where two or more words are coupled together and used, they take colour from each other. In Maxwell, on Interpretation of Statutes, 11th Edn., p.321, it is stated: ''When two or more words which are susceptible of analogous meaning are coupled together noscunter a sociis, they are understood to be used in their cognate sense. They take, as it were, their colour from each other, that is, the more general is restricted to a sense analogous to the less general." The limits of this rule was