9911796707
TMI Blog2013 (4) TMI 243X X X X Extracts X X X X X X X X Extracts X X X X ..... error is so apparent that without further investigation or enquiry, only one conclusion can be drawn in favour of the applicant, such an error is one apparent on the face of the record. As in the present case order reveals that, the appellate tribunal has referred to statutory provisions and has given reasons for its conclusion that it is a hotel. Similarly, after discussion, the tribunal held that ayurvedic treatment given to the guests in the hotel is a service. As far as levy of interest is concerned, contention was that assessment was completed only when order was passed in compliance with Tribunal's order and therefore levy of interest from the assessment year concerned is illegal. Thus at best the petitioner can only say that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al or it was essentially a tourist resort where extensive facilities for ayurvedic treatment and massage are also provided." 3. Accordingly the Original Petition was allowed and setting aside the order of the Tribunal, the appeals were restored to the file of the Tribunal for reconsideration of the matter as directed in the judgment. Tribunal considered the matter afresh and by Et.P5 common order dismissed the appeals filed by the petitioner and allowed the appeals filed by the State. In this order, the Tribunal upheld the finding of the assessing authority thus; "Reading of the definitions of hotel, luxury and luxury provided in a hotel in sections 2(e), 2(ee) and 2(f) together and applying them to the facts and circumstances of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed in the Hotel. Treatment charges cannot be considered as charges for amenities and services provided in the Hotel, because the treatment charges and medicine go together and relates to the collection from the Ayurvedic Hospital run by our establishment. It is an undisputed fact that the petitioner establishment is running the Ayurvedic Hospital in a full-fledged manner by employing qualified Ayurvedic Doctors and para- medical staff. The dominant activity is running Traditional Ayurvedic treatment centre which provides traditional ayurvedic treatment, consisting of Dhara, Pizhichil, Uzhichil and other forms of Punchakarma treatment. The existence of these facilities and services are the attributes of Ayurvedic Hospital and treatment centr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of Ext.P6 assessment order. In this application, they stated thus; "Secondly, it is seen that interest is levied from April, 2004 to March, 2009 on the gross demand for the Assessment year 2003-04. This is against the statutory provision as well as the decision of the Hon'ble High Court of Kerala in the case of M/s Windsor Castle Vs. Commercial Tax Officer and another ((2012) 3 KHC 301). The above judgment was rendered with reference to levy of luxury tax. In paragraph-34 of the judgment, the question considered related to interest payable. The Hon'ble High court of Kerala has taken the same view in the decision in Casino Hotel Vs. State of Kerala reported in 15 KTR 485. This decision may kindly be followed. By virtue of explanation t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubmission made by the Senior Counsel for the petitioner was that since the petitioner's establishment includes a hospital, inclusion of treatment expenses in the taxable turnover of hotel is erroneous. According to him, the dominant activity is that of a hospital and not a hotel. He also contended that in the assessment order passed, interest has been levied from the end of the concerned financial years. Both these, according to the counsel, are erroneous and are to be rectified under section 6(6) of the Act. Per contra, learned Government Pleader contended that there are no errors in the assessment order or appellate order to be rectified under section 6 (6) of the Act. 9. The power to rectify errors in the orders passed has been con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... apparent on the face of the record. This court has examined the scope of the power of rectification provided under section 43 of the KGST Act in the judgment in R.K. Latex Private Ltd. v. State of Kerala (ILR 2007(4) Kerala 365) and it was held that only mistakes apparent on the face of record can be corrected and that a wrong decision taken by the Tribunal can be corrected only by the High Court in its revisional jurisdiction. Therefore, an illegal order cannot be corrected by rectification under section 6(6) of the Act and in the guise of rectification under section 6(6) of the Act, one cannot seek a rehearing by the assessing authority or the appellate authority. 11. Having thus seen the contours of power under section 6 (6) of the Act ..... X X X X Extracts X X X X X X X X Extracts X X X X
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