Case: Express Hotels Private Limited Vs. State Of Gujarat &amp; Anr

2. Civil Appeal Nos. 338 and 339 of 1981, Writ Petition Nos. 7990, 9119, 8338, 8339 of 1981 relate to the challenge to the legislation by the State of Gujarat viz., the Gujarat Tax on Luxuries (Hotels and Lodging Houses) Act, 1977. Writ Petition No. 162 of 1982 pertains to the corresponding legislation of the State of Tamil Nadu viz., Tamil Nadu Tax on Luxuries in Hotels and Lodging Houses Act, 1981. Writ Petitions Nos. 1271 and 1272 of 1982 pertain to the challenge to corresponding Karnataka legislation viz., the Karnataka Tax on Luxuries (Hotels and Lodging Houses) Act, 1979. Writ Petition No. 5321 of 1985 pertains to the challenge to West Bengal Entertainments and Luxuries (Hotels and Restaurants) Tax Act, 1972. All these taxing statutes, except for certain aspects individual to them, are analogous and the scheme of the legislation is substantially similar. The variations are in the differences in the criteria of classification of the hotels to which the Act is applied and the rates of taxes. The grounds of challenge are substantially the same. An examination of the contentions urged in support of the challenge to one statute would cover the cases of the other statutes asThe Statement of Objects and Reasons in the Gujarat Legislative Billa view to augmenting the financial resources of the State it is proposed to levy a tax on luxury provided in hotels and lodging houses at the rate of certain percentages of lodging charges recovered by the proprietors of such hotels and lodging houses from persons lodging therein. Every accommodation provided in a hotel or lodging house the charges for which are not less than rupees thirty-five per day per person is, for the purposes of the tax, to be treated as a luxury. This bill seeks to achieve that object."

Court's reasoning:
12. The arguments of learned counsel on the first three contentions require to be considered together as these contentions themselves have certain overlapping areas amongst them. Basically, the question is to what constitutes luxuries as the subject of a tax under Entry 62, List II, and secondly, whether providing of accommodation for lodging in hotels or lodging houses, even if the accommodation could be said to be "luxuries" in a colloquial sense, could be the subject of a tax under Entry 62 of List II. Shri Sorabjee contended that the concept of a tax on luxuries `contemplates a tax on articles and goods, like jewellery, perfumes, liquors, tobacco etc., in their character and attribute as articles of luxury. The idea, it is urged, does not include services or activities as falling within the concept of luxuries as a subject of taxation. The Gujarat High Court dealing with this contention held that the contention, if accepted, would diminish the contention held that the contention, if accepted, would diminish the content of the entry and reduce its scope from "taxes on luxuries" to "taxes on articles of luxuries". Shri Sorabjee, however, submitted that the High Court was in error in its understanding of the import of the concept of luxuries in Entry 62 as a subject of tax. The learned counsel also referred to the following observations of the High Court of Bombay in State of Bombay v. R. M. D. Chamarbaugwalia (AIR 1956 Bom 1 , 11 : 57 Bom LR 288)"With regard to luxuries it is significant to note that the plural and not the singular is used, and the luxuries in respect of which a tax can be imposed under Entry 62 is a tax on goods or articles which constitute luxuries, and it is again significant to note that the topic of luxuries only is to be found in Entry 62 in the taxation power and not in either Entry 33 or 34. That clearly shows that, what was contemplated was a tax on certain articles or goods constituting luxuries and not legislation controlling an activity which may not be a necessary activity but may be necessary and in that sense a luxury."13. It is to be noticed that the decision of the Bombay High Court in which the above observation occurs was overruled by this Court in State of Bombay v. R. M. D. Chamarbaugwala (1957 SCR 874 : AIR 1957 SC 699 ). The impugned State legislation which the High Court had struck down was held to be a valid piece of legislation under Entry 62, List II. In the light of the decision of this Court in the case, the observations of the learned Chief Justice of the Bombay High Court excepted are rendered inapposite. Indeed, a view similar to the one taken by the Bombay High Court as to the concept of luxuries in Entry 62 of List II was taken by the Kerala High Court in A. S. Bava v. State of Kerala (1971 Tax LR 512 : 1971 Ker LJ 4 (Ker).). However, the views of the Bombay and Kerala High Courts were referred to and dissented from by the Calcutta HighIn Spences Hotel Private Ltd. v. State of West Bengal (1975 Tax LR 1980, 1892 (Cal)) it wasthese premises, we are of opinion that luxuries in Entry 62 of List II should not be confined to articles or objects or luxury alone. In view of the social and economic structure of our country there can be no doubt that an air-conditioned space whether in a hotel or in a restaurant is a luxury by itself. People enter into these spaces for enjoyment of a luxury. In fact, the ambit of Entry 62 which includes taxes on entertainments, amusements, betting and gambling, shows that a tax levied under Entry 62 cannot be restricted to certain articles only but may also be extended to things incorporeal. The comfort that a person derives in a hot summer day in an air-conditioned space is a luxury particularly in the context of the conditions in which the masses live in India today. In our opinion, the State legislature is competent to impose a tax on thisreasons we shall state presently, we approve the view taken by the Calcutta HighWe are dealing with an entry in a Legislative List. The entries should not be read in a narrow or pedantic sense but must be given their fullest meaning and the widest amplitude and be held to extend to all ancillary and subsidiary matters which can fairly and reasonably be said to be comprehended inIn the Western India Theatres Ltd. v. Cantonment Board, Poona Cantonment(1959 Supp 2 SCR 63 : AIR 1959 SC 582 .), this Court was dealing with the scope of the power of the Provincial legislature under Section 100 ofthe Government of India Act, 1935, with respect to Entry 50 in Schedule VII of the said Act, to make laws with respect to "taxes on luxuries including taxes on entertainments, amusements, betting and gambling". The contention of the appellant in that case was that the entry authorised a law imposing taxes on persons who received or enjoyed the luxuries etc., and that no law made with respect to that entry could impose a tax on persons who provide the luxuries, entertainment or amusements. It was contended that those who provide the luxury etc., did not themselves receive or enjoy the luxury or entertainment or amusement, but were simply carrying on their profession or trade and were not amenable to be taxed under that entry. Rejecting the argument it was said : (SCR p.view of this well-established rule of interpretation, there can be no reason to construe the words "taxes on luxuries or entertainments or amusements" in Entry 50 as having a restricted meaning so as to confine the operation of the law to be made thereunder only to taxes on persons receiving the luxuries, entertainments, or amusements. The entry contemplates luxuries, entertainments, and amusements as objects on which the tax is to be imposed. If the words are to be so regarded, as we think they must, there can be no reason to differentiate between the giver and the receiver of the luxuries, entertainments, or amusements and both may, with equal propriety, be made amenable to theconcept of luxuries as a subject of tax was not confined to those who receive or enjoyed the luxury. It could be on those who providedIn Encyclopaedia Britannica the meaning of the words luxury tax is set outtax : A tax on commodities on services that are considered to be luxuries rather than necessities. Modern examples are taxes levied on the purchase of jewellery, perfume and tobacco.In Websters Comprehensive Dictionary, International Edition the word luxury is1. A free indulgence in the pleasures that gratify the senses. 2. Anything that ministers to comfort or pleasure that is expensive or rare, but is not necessary to life, health, subsistence, etc., a delicacy.Luxury connotes extravagance or indulgence, as distinguished from the needs and necessities ofe New Dictionary of Thoughts has these thoughtful things to say ofthe soft bed of luxury most kingdoms have expired."-we are accustomed to them from early youth, splendid chambers and elegant furniture had best be left to people who neither have nor can have any thoughts." -destroys men, but luxury destroys mankind; at once corrupts the body and the mind." -The concept of a tax on luxuries in Entry 62, List II cannot be limited merely to tax things tangible and corporeal in their aspect as luxuries. It is true that while frugal or simple food and medicine may be classified as necessities; articles such as jewellery, perfume, intoxicating liquor, tobacco, etc., could be called articles of luxury. But the legislative entry cannot be exhausted by these cases, illustrative of the concept. The entry encompasses all the manifestations or emanations, the notion of luxuries can fairly and reasonably (sic) can be said to comprehend the element of extravagance or indulgence that differentiates luxury from necessity cannot be confined to goods and articles. There can be elements of extravagance or indulgence in the quality of services andIn A. B. Abdul Kadir v. State of Kerala ((1976) 3 SCC 219 : 1976 SCC (Tax) 270 : (1976) 2 SCR 690 , 699-700) Khanna, J. said : (SCC p. 277, paraword luxury in the above context has not been used in the sense of something pertaining to the exclusive preserve of the rich. The fact that the use of an article is popular among the poor sections of the population would not detract from its description or nature of being an article of luxury. The connotation of the word "luxury" is something which conduces enjoyment over and above the necessaries of life. It denotes something which is superfluous and not indispensable and to which we take with a view to enjoy, amuse or entertain ourselves. An expenditure on something which is in excess of what is required for economic and personal well being would be expenditure on luxury although the expenditure may be of a nature which is incurred by a large number of people, including those not economically wellsubmission of Shri Sorabjee, if accepted, will unduly restrict the scope of the legislative entry which should otherwise have the widest and the most liberal meaning and connotation given to it. Contention (a), in our opinion, isThis contention pertains to a provision particular to the West Bengal legislation. It is urged that insofar as Section 4 of the West Bengal Act envisages a tax on the mere existence for the provision of the luxury and is levied even if the luxury is not utilised by any person, it was beyond the scope of the legislative entry. It was submitted that there must be both a giving and receiving of the luxury and that a tax on the mere existence of the means of providing the luxury would be insufficient to support a law imposing a tax thereon. It would, in any event, it is urged, constitute an unreasonable restriction on the freedom under ArticleReliance was also placed on certain observations in Western India Theatres Ltd., case (1959 Supp 2 SCR 63 : AIR 1959 SC 582 .). The passage in the judgment relied upon by Shri Sorabjee merely says that both the giver and the receiver of the luxuries are amenable to be taxed. The decision cannot be understood as laying down the proposition that if there is no actual utilisation of the luxury, no tax can be levied on the mere existence of the provisions made for the prospective or potential utilisation of theIn support of the proposition that a tax on luxuries must relate to and be based on an actual utilization of the luxury and not on the mere existence of the means of providing luxury Shri Sorabjee placed strong reliance on the observations of the High Court of Bombay in Ramesh Waman Take v. State of Maharashtra(AIR 1984 Bom 345 , 350, para 16 : (1984) 2 Bom CR 268.), which while dealing with the legislation under Entry 62 List II imposing a tax on entertainmentour opinion, this is not a tax on entertainment at all which the State legislature is entitled to levy under item 62 of the State List. In order that the entertainment duty should amount to a tax on entertainment it should be levied on entertainment which is actually held and not on entertainment which is theoretically capable of being held. Looking to the provisions which have been examined in details it is clear to us that the said provisions do not take into account entertainment that is actually held by the owner of the touring cinema or the owner of the video exhibition. The basis on which tax can be validly levied is the fact of entertainment. The taxing event is the entertainment. If there is no entertainment at all, the question of levying entertainment tax in exercise of the legislative powers conferred upon the State legislature does not arise at all. If the Act purports to levy tax on notional entertainment, then the exercise of that taxing power must be held to be ultra vires the Constitution. This is exactly what has happened in the instantmight possibly be some distinctions between the ideas of entertainment and luxuries. With due respect to the High Court, the interpretation that commended itself to the High Court would unduly restrict the scope of the legislative entry. On such an interpretation, it might be possible for a person to go further and also contend that no entertainment was actually derived. The concept of luxuries in the legislative entry takes within it everything that can fairly and reasonably be said to be comprehended in it. The actual measure of the levy is a matter of legislative policy and convenience. So long as the legislation has reasonable nexus with the concept of luxuries in the broad and general sense in which the expressions in legislative tests (sic lists) are comprehended, the legislative competence extends to all matters with respect to that field or topic ofThe taxable event need not necessarily be the actual utilisation or the actual consumption, as the case may be, of the luxury. The contention, in substance, is that the means of providing luxury, by itself, does not provide the nexus between the taxing power and the subject of tax and there must be an actual and not merely a notional or potential, consumption or utilisation of the luxury. As an instance of what can be said to be fairly and reasonably comprehended in a legislative entry, reference may be made to the "notional" income, for purposes of a tax on income, of a person, from a house property in his own personal occupation or a property not actually let. In that context this Court said "that which can be converted into an income can be reasonably regarded as giving rise to income" (See : Bhagwan Dass Jain v. Union of India ((1981) 2 SCC 135 : 1981 SCC (Tax) 84 : AIR 1981 SC 907 .)) a luxury which can reasonably be said to be amenable to a potential conception does provide theIf the provider of the luxury is also independently amenable to the tax, the further restriction on the power suggested by the argument tends to cut into the plenitude of the field of legislation. If the idea of "luxuries" is required to be so wide as to comprehend in it every aspect which can fairly and reasonably be said be embraced by it, then, the taxing power cannot be limited to or conditioned in the manner suggested. Once the legislative competence and the nexus between the taxing power and the subject of taxation is established, the other incidents are matters of fiscal policy behind the taxing law. The measure of tax is not the same thing as, and must be kept distinguished from, the subject of theSo far as the argument that fundamental rights under Article 19(1)(g) are violated by a levy on a mere provision for luxury, without its actual utilisation, is concerned it is settled law that the mere excessiveness of a tax or that it affects the earnings cannot, per se, be held to violate Article 19(1)(g). Contention (b) is not substantialContention (c) andThese contentions were somewhat attractively presented and bear close scrutiny. Shri Sorabjee urged that the concept of "luxuries" is a relative or comparative idea, distinguishable from "necessities" by the special attribute or quality of distinction inherent in them. The articles or activities of luxury could be identified as such only by reason of that inherent distinguishing special quality or attribute. The price factor, says learned counsel, might be, prima facie, an index of that special quality or attribute; but the price is not itself a substitute for the special quality or attribute. Therefore, if what is legislatively classed as luxury is on the sole basis of the price alone, then the legislative definition or the means of identification of the luxury becomes irrational as it has the effect of substituting price in place of the special quality. The two are not the same thing. There is nothing in the law, it is urged, which identifies or distinguished luxury on the basis of any special attribute apart from the priceThis argument itself recognises that price might be, and very often is, evidence of quality. The statute proceeds on the premise that any accommodation in a hotel which is priced above a certain level could reasonably be held to be of a particular quality distinguishing it from others. These ideas of luxury or necessity are necessarily relative ideas and require to be understood in the context of the contemporary standards of living. What might have been a luxury some decades ago might cease to partake of that character now. What is luxury today might be considered a necessity a decade or soIn Abdul Kadir case (1976) 3 SCC 219 : 1976 SCC (Tax) 270 : (1976) 2 SCR 690 , 699-700) it was observed : (SCC p. 228, paramay be added that there is nothing static about what constitutes an article of luxury. The luxuries of yesterday can well becomes the necessities of today. Likewise, what constitutes necessity for citizens of one country or for those living in a particular climate may well be looked upon as an item of luxury for the nationals of another country or for those living in a different climate. A number of factors may have to be taken into account in adjudging a commodity as an article of luxury.We are presently concerned with the question whether the quality or standards of lodging accommodation in hotels can be called luxurious by contemporary standards by reason of the higher standards of charges payable for the accommodation. Legislature has chosen to identify the luxury by the statutory standards prescribed by it. According to the legislative assumption, price does become evidence of the special quality on the basis of which luxuries could be distinguished and that some special quality is attributable to goods and services through the means of the price. Quality and price, in the legislative assessment, can be assumed to have a logical interrelationship. This cannot be held to suffer from vice ofanswer is that in the context of lodging accommodation and the services that go with it the concept of luxury would necessarily be a comprehensive idea taking into account the various components of the services. Differences of degree can at particular stage become differences of kind. The composite elements of lodging accommodation and services association with it cannot be broken into components so as to distinguish some components as necessities, some others as comforts and yet others as luxuries. Even necessities and comforts which have to them the additional element of undue elegance to a point of extravagance and indulgence might become luxuries. Though the arguments on these contentions were not without their interesting facts, we must, however, express our inability to accept them as valid arguments against the constitutionality of theContentions (c) and (d) are accordingly held and answered against the petitioners and theThe point sought to be put across arises out of the definition of the expression charges for lodging in Section 2(a) read with the Explanation to that provision. Section 2(a) defines "charges for lodging" to include charges for air conditioning, telephone, television, radio, music, extra beds "and the like". It is contended that the expression and the like is vague and confers an arbitrary power to bring to tax an undefined entity. It is further contended that the Explanation appended to Section 2(a)to the effect that the decision of the State Government on any dispute in that behalf is final and shall be called in question in any court aggravates the arbitrariness and constitutes an unreasonable restriction and is violative of Article 19 (1)(g). Reliance was placed on the decision of this Court in Corporation of Calcutta v. Calcutta Tramways Co.((1964) 5 SCR 25 : AIR 1964 SC 1279 : (1964) 2 Cri LJWe are afraid, the argument overlooks certain relevant factors bearing on the point. It is, no doubt, true that it has been held in several cases that the absence of a provision for a corrective machinery, by way of appeal or revision, to rectify an adverse order made by an authority on whom power is conferred, might indicate that the power so conferred is unreasonable or arbitrary. But the corrective machinery may itself take several forms and be inherent or found in the provisions for conferment of the power themselves. The mere absence of a corrective machinery or the existence of a provision imparting finality, by themselves, would not be conclusive so as to render the conferment of power per se unreasonable and arbitrary rendering the provision unconstitutional. In Babubhai & Co. v. State of Gujarat ((1985) 2 SCC 732 , 736.) this Court said : (SCC p. 736, parain other words mere absence of a corrective machinery by way of appeal or revision by itself would not make the power unreasonable or arbitrary, much less would render the provision invalid. Regard will have to be had to several factors, such as, on whom the power is conferred - whether on a high official or a petty officer, what is the nature of the power - whether the exercise thereof depends upon the subjective satisfaction of the authority or body on whom it is conferred or is it to be exercised objectively by reference to some existing facts or tests.....There are inbuilt checks on the power under the Explanation to Section 2(a). The expression and the like would require to be construed ejusdem generis. The genus or the class of items envisaged by the preceding words not having been exhaustive of the genus or the class, the legislature, therefore, has supplied the words and the like so as to bring in any other item of the same class or genus. This, by itself, is a clear guide for the exercise of the power. Another relevant consideration is the identity and status of the repository of the power. The power is given to a high authority like the State Government. In these circumstances, it cannot be said that the power is an uncanalised power and is an arbitrary or unreasonable one. There are statutory guides governing its exercise and the guidelines are governed by well-settled principles of interpretation. There is no substance in contention (e)Re ContentionWhat is assailed here in the deeming provision in Section 4(3) which brings to charge at the normal rates cases where no charges is collected at all for lodging or where concessional rates are charged. The deeming provision does not apply to cases where accommodation is provided free or at commercial rates to the employees of the hotel. No fault can be found with this provision which merely states that where the usual lodging charges are not collected for providing the lodging accommodation, tax shall be payable as if the usual charges had been collected. This is a provision against evasion. There is no merit in the challenge to the validity of this provision. Contention (f) requires to beOn the significance of the word intercourse in Section 92 of the Australian Constitution, it was held by the Australian High Court in Gratwick v. Johnson ((1945) 70 CLR 1) that an order which provided that no person should travel by rail or commercial passenger vehicle from any State in the commonwealth to any other State without a permit from a commonwealth official would violate the freedom of intercourse under Section 92. It was held that the prohibition showed "an indifference to, if not a disdain of, the terms of SectionIn Atiabari Tea Co. v. State of Assam ((1961) 1 SCR 809 , 860-61 : AIR 1961 SC 232 ) this Court said : (SCR pp.in determining the limits of the width and amplitude of the freedom guaranteed by Article 301 a rational and workable test to apply would be : Does the impugned restriction operate directly or immediately on trade or its movement ?".... It is the free movement of the transport of goods from one part of the country to the other is intended to be saved, and if any Act imposes any direct restrictions on the very movement of such goods it attracts the provisions of Article 301. .....In Firm A.T.B. Mehtab Majid & Co. v. State of Madras (1963 Supp 2 SCR 435 : AIR 1963 SC 928 : (1963) 14 STC 355 ) this Courtis therefore now well settled that taxing laws can be restrictions on trade, commerce and intercourse, if they hamper the flow of trade and if are not what can be termed to be compensatory taxes or regulating measures. Sales tax, of the kind under consideration here, cannot be said to be a measure regulating any trade or a compensatory tax levied for the use of trading facilities. Sales tax, which has the effect of discriminating between goods of one State and goods of another; may affect the free flow of trade and it will then offend against Article 301. ....Taxes can and do sometimes, having regard to their effect and impact on the free flow of trade, constitute restrictions on the freedom under Article 301. But the restriction must stem from the provisions of the law imposing the tax which could be said to have a direct and immediate effect of restricting the free flow of "trade, commerce and intercourse". If is not all taxes that have thisFreedom under Article 301 is, by all reckoning, a great freedom, one of the utmost significance to economic unity of the nation. Underlying the need for and the recognition of the freedom of inter state trade, commerce and intercourse, one is tempted to refer to the lofty sentiments of Justice Cardozo in Baldwinv. GAF Inc. (1934 US 511)that "it was framed upon the theory that peoples of several States must sink or swim together and that in the long run the prosperity and salvation are in union and not in division" and that "the ultimate principle is that one State in dealing with another may not place itself in position of economicBut in the present case it has not been pointed out how a tax on "luxuries" enjoyed by a person in a hotel is either discriminatory or has the direct and immediate effect of impeding the freedom of intercourse. InGrannall v. Marrickville Margarine Pty. Ltd., (1955) 93 CLR55) a New South Wales statue which prohibited the manufacture of margarine without a licence which, if granted, would contain condition limiting the quantity to be manufactured was assailed on the ground of its violation of Section 92 of the Australian Constitution. Repelling the challenge, it was held"It is of curse obvious that without goods there can be no inter state or any other trade in goods. In that sense manufacture or production within, or importation into, the Commonwealth is an essential preliminary condition to trade and commerce between the State in merchandise. But that does not make manufacture production or importation trade and commerce among the States. It is no reason for extending the freedom which Section 92 confers upon trade and commerce among the State to something which precedes it and is outside the freedom conferred.We find no substance in contention (g)