IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM MONDAY, THE 17TH JANUARY 2011 / 27TH POUSHA 1932 WP(C).No. 1424 of 2011(C) ---------------------------------- PETITIONER(S): ------------------------ M/S.SREE RAMALINGA SOWDAMBIKA TRUST, VALLANGY, NEMMARA, PALAKKAD DISTRICT, REPRESENTED BY ITS PRESIDENT MANICKAN CHETTIAR. BY ADVS. SRI.HARISANKAR V. MENON SMT.MEERA V.MENON SRI.MAHESH V.MENON RESPONDENT(S): ------------------------ 1. COMMERCIAL TAX OFFICER (LUXURY TAX), PALAKKAD.678 001. 2. INTELLIGENCE OFFICER (IB), DEPARTMENT OF COMMERCIAL TAXES, 1ST FLOOR, NINAN'S COMPLEX, PALAKKAD.678 001. 3. STATE OF KERALA, REPRESENTED BY ITS SECRETARY, TAXES DEPARTMENT,GOVERNMENT SECRETARIAT THIRUVANANTHAPURAM.01. BY SR. GOVT. PLEADER SRI.C.K.GOVINDAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 17/01/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss C.K.ABDUL REHIM, J. ------------------------------------------- W.P.(C).No.1424 of 2011 ------------------------------------------- Dated this the 17th day of January, 2011 J U D G M E N T ---------------------- The petitioner is a Trust who is managing the affairs of a temple, 'Sowdambika Temple', Vallangy. The petitioner Trust owns a 'Kalyanamandapam' (Auditorium), which according to the petitioner is situated attached to the above said temple and the name of the Kalyanamandapam itself is 'Sowdambika Hall'. According to the petitioner, the use of the Auditorium is mainly for the purposes of the temple and its devotees. It is conceded that the hall is being rented out for the purpose of conducting marriages as well as for other public functions on collecting nominal rent. 2. Question arises as to whether the petitioner is liable to be registered under the provisions of the Kerala Tax on Luxuries Act and as to whether they are liable for payment of Luxury Tax. Through Ext.P2 notice the 1st respondent had issued proposal to impose penalty alleging that the petitioner had failed to take registration under the W.P.(C).1424/11 -2- provisions of the Act. Objection if any against the proposal was called for, to be submitted within the time stipulated therein. The petitioner submitted Ext.P3 reply stating that the hall in question is used principally as 'Bhajana Madom' and that no tax is payable under the relevant statute since it is located within the compound of the temple. In spite of submission of Ext.P3 the 1st respondent further issued a similar notice Ext.P5. The petitioner was also required to appear before the 1st respondent and to produce documents such as Certificate of Registration and Books of Accounts, etc. The petitioner again submitted detailed objection as evidenced from Ext.P6, denying the liability for taking registration and for payment of tax. It is specifically pointed out that the petitioner was exempted from payment of Building Tax under the provisions of the Kerala Building Tax Act by virtue of Ext.P1 order issued by the Government, wherein it was found that the petitioner is letting out the Kalyanamandapam (hall) on collecting only a nominal rent. It is the specific finding in Ext.P1 that the hall in question is owned by a charitable institution and only the electricity charges and cleaning charges are collected from the public for use of the Auditorium in question. Based on Ext.P1, contention was raised that the petitioner is eligible to be exempted from the purview of W.P.(C).1424/11 -3- Kerala Tax on Luxuries Act. 3. On a perusal of Section 4(1) of the Kerala Tax on Luxuries Act it is evident that the petitioner will be eligible for exemption only if the Auditorium is located within the 'premises of the places of worship' owned by such institution. In this case it is evident that the Trust which is managing the affairs of the temple is the owner of the 'Kalyanamandapam' (Auditorium). But the question as to whether it is located within the premises of the temple itself is the crucial aspect which need be considered. The eligibility for exemption from payment of tax under the Building Tax Act is distinct and different from the eligibility for exemption under the Kerala Tax on Luxuries Act. Therefore, the fact that the petitioner was exempted from the purview of Kerala Building Tax Act will not by itself entitle the petitioner to seek exemption from payment of Luxury Tax. The question whether the auditorium is located within the premises of the temple is a factual aspect which could not be decided by this court in a writ petition under Article 226. 4. Under the above mentioned circumstances I am of the view that this is a matter which need be considered at the first instance by the 1st respondent. However, it is only just and proper to direct the 1st respondent to take a decision regarding W.P.(C).1424/11 -4- the liability of the petitioner to get registered under the provisions of the Act, before proceeding with any steps for imposing penalty or for imposing liability for payment of tax. Hence I am of the view that interest of justice will be served if a direction is issued to the 1st respondent to consider the objections and claim for exemption, as a preliminary issue, and to take a decision thereof. 5. Hence the writ petition is disposed of directing the 1st respondent to consider Ext.P3 and P6 objections submitted before respondents 1 and 2, and to take a decision thereof after affording an opportunity of hearing to the petitioner. Needless to say that the 1st respondent will be at liberty to conduct physical verification in order to arrive at a just conclusion regarding the claim for exemption. A decision in this regard shall be taken at the earliest possible, at any rate within a period of one month from the date of receipt of a copy of this judgment. 6. Till such time a decision is taken in this regard the respondents 1 and 2 are directed not to proceed with any further steps on the basis of Ext.P2, P4 and P5 notices. C.K.ABDUL REHIM, JUDGE. okb