9911796707
TMI Blog2013 (4) TMI 243X X X X Extracts X X X X X X X X Extracts X X X X ..... Ayurvedic Hospital, which has obtained registration under the Act, the certificate of which is Ext.P1. Treating the establishment as a hotel, the 1st respondent passed Ext.P2 order of assessment for the assessment years 2003-04 to 2007-08. The 1st appellate authority modified the assessments, but on further appeals, the Appellate Tribunal passed Ext.P3 order, allowing the appeals filed by the petitioner and dismissing the appeals filed by the State against the modification ordered by the Appellate Authority. Department challenged the Tribunal's order by filing O.P(c) No.1928/12 before this Court. The case was disposed of by Ext.P4 judgment. In this judgment, this Court held thus; "The question, however, to be considered is whether ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a hotel"." 5. Based on the directions of the Tribunal to accept the book figure and to recompute the taxable income, the assessing authority passed Ext.P6 assessment order levying tax and also quantified the interest payable as on November 2012. On receipt of the assessments order, the petitioner filed Ext.P7 series of applications before the Tribunal seeking rectification of Ext.P5 order. In paragraph 8 of Ext.P7 application, it is stated thus; "8. U/s 4(2) of the Act,luxury tax shall be levied and collected in respect of a Hotel for charges of accommodation for residence and other amenities and services provided in the Hotel, excluding food and liquor. What is includible as per the charging section is "charges for accommodation for res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ne and receipt from treatment are not includible in the taxable income. Therefore, lack of clarity or the ambiguity in the order of this Hon'ble Tribunal in the regard is taken advantage of by the Assessing Officer, while giving effect to the Appellate Order as per proceedings dated 30/11/12, which has resulted in a huge demand of Rs.1,38,15,597/-. Over and above the amount of Rs.30 lakhs already paid by the petitioner to the extent of not giving a specific direction for excluding the treatment charges from the levy of luxury tax, there is a mistake apparent from record which is rectifiable. As otherwise, it would cause serious and irreparable hardship, financial burden and injury to the petitioner." 6. They also filed Ext.P8 series of app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s is illegal and requires to be rectified. The adjustment of tax already paid towards interest is not sustainable under the provisions of the Act. Whatever amount is remitted should be set off against the demand and from the date of payment, interest leviable only on the balance amount. The levy of interest requires to be re- considered." 7. Pleadings show that Exts.P7 and P8 applications are pending before the concerned authorities and while so this writ petition has been filed seeking to quash Ext.P5 and to direct consideration of Exts.P7 and P8 applications. They also pray that pending consideration of Exts.P7 and P8, recovery pursuant to Ext.P6 should be stayed. 8. Heard the learned senior counsel for the petitioner and the learned G ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... istake or deviation from accuracy or correctness. In view of the language of Section 6(6) of the Act, such a deviation must be one which is apparent on the face of the records itself. In Satyanarayan v. Mallikarjun (AIR 1960 SC 137), the Apex Court has held that where two views are possible as regards the error complained of, it cannot be said to be an error apparent on the face of the record. Further, it is trite that the errors complained of must be self-evident, that is to say, it should be evident without any elaborate examination of the merits and are not those which can be discovered only after an elaborate argument. In other words, if the error is so apparent that without further investigation or enquiry, only one conclusion can be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ceptance of the contention that the establishment is a hotel, requires reversal of the factual finding of the appellate tribunal. The 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. 13. Irrespective of the tenability of these contentions, the question I am concerned is whether these contentions indica ..... X X X X Extracts X X X X X X X X Extracts X X X X
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