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TMI Blog2001 (9) TMI 1082X X X X Extracts X X X X X X X X Extracts X X X X ..... Judge of this Court dismissed the same on the ground that the remedy sought for in the writ petition by way of writ is premature and further the petitioner has an alternate remedy under the Act by way of an appeal to the appellate authority. 3.. Being aggrieved by the said order of the learned single Judge, the appellant has preferred this appeal. 4.. It may be straightaway mentioned that both the reasons given by the learned single Judge cannot be sustained and which should mean this Court has to dispose of the writ appeals on the merits. The first ground mentioned by the learned single Judge is that the writ petitions are premature. A reading of the assessment orders would clearly show that the respondent finally decided after considering the objections to impose a tax and penalty as mentioned earlier. Of course, the orders mention that the demand notice will be issued accordingly. It can be noticed from the first page of the respective assessment orders, it is mentioned that as against the said assessment order an appeal would lie to the Assistant Commissioner of Commercial Taxes, Madurai North. Hence, it cannot be said that the writ is premature. The second reasoning given b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the poor; construction of building and any excess left for improvement and for repair works from time to time. It is the case of the appellant that the entire financial activities of the temple are subject to Chapter VIII of Tamil Nadu Act XXII of 1959 and that none of the activities of the temple are with profit-motive. The appellant does not carry on any commercial or profit-making activity and maintenance of properties and securing of rents and other income are only to subserve the primary activities of the institution. The entire income of the temple is also exempted from paying income-tax by the Government of India. It is the definite case of the appellant that it is only a religious establishment and not a commercial establishment or business venture and in fact the respondent in its order squarely conceded that the appellant is not a dealer. The provision for the rest place is considered devout duty and the contributions of the devotees, though at a specific rate is only to meet the cost of maintenance of the structures and buildings. The rates charged to the devotees are only towards maintenance of the building matching of the overheads of the establishment and even thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of residents (including charges for air-conditioning, television, radio, music, extra beds and the like but excluding charges for food, drink and telephone calls) is twenty rupees or more but is less than fifty rupees per person per day." Section 2(f) defines the term "Hotel" as under: "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." (Emphasis supplied) 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have not been disputed in the counter-affidavit filed by the respondent. In such an event, applying the ruling of the Supreme Court reported in AIR 1993 SC 2592 (Smt. Naseem Bano v. State of U.P.) we proceed on the basis that the averments have been admitted by the respondent. Once we arrive at such a conclusion, inasmuch as the appellant has not been carrying on this activity of providing accommodation to the pilgrims who come in large numbers with profit-motive, it cannot be said that the appellant did any act by way of business. 13.. Even assuming for a moment that section 2(d) of the Tamil Nadu General Sales Tax Act, 1959 as amended by Amendment Act, 1964 where the term "business" has been defined as "business includes-(i) any trade or commerce or manufacture or any adventure or concern in the nature of trade, commerce or manufacture, whether or not such trade, commerce, manufacture, adventure or concern is carried on with a motive to make gain or profit and whether or not any profit accrues from such trade, commerce, manufacture, adventure or concern; and (ii) any transaction in connection with, or incidental or ancillary to, such trade, commerce, manufacture, adventure or c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of the appellant is something very different from doing business. When the appellant, whose laudable objects have already been enumerated by us, sold some prasadams like panchamirtham to the devotees, which is purely incidental, it cannot be said that the appellant is indulged in business in a commercial sense. The dominant activity of the appellant is religious and charitable in nature and not a business activity." 16.. That apart we are also inclined to point out one more aspect of the matter. One of the contentions raised by the appellant is that the authorities are not invoking the provisions of the Act in respect of Rameswaram and Tiruthani Devasthanams. In paragraph 4 of the counter-affidavit, this has been replied by the respondent in the following lines: "..............The contention that the authorities are not invoking the provisions of the Act in the case of Rameswaram and Tiruttani Devasthanam is not also relevant for the consideration of the liability of the petitioners in the present case...." 17.. The respondent should take more pragmatic approach in all these matters. If the respondent is not invoking the Act for Tiruttani Devasthanam where Lord Muruga is the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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