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TMI Blog2001 (11) TMI 988X X X X Extracts X X X X X X X X Extracts X X X X ..... rvices to poor and needy by free/ concessional services. 3.. According to the petitioner, the Deputy Commercial Tax Officer, Vigilance and Enforcement, Hyderabad City Range, the first respondent herein, visited the hospital and instructed the Assistant Manager in-charge of the hospital to pay luxury tax under the Act and a report was sent to the Commercial Tax Officer, Jubilee Hills Circle, Hyderabad, the second respondent, in that regard. The second respondent deputed the Deputy Commercial Tax Officer, Jubilee Hills Circle, Hyderabad, the third respondent herein to inspect the petitioner's hospital and accordingly the third respondent visited the hospital and directed the petitioner to file information regarding the collections made towards charges for the various amenities and facilities provided in the hospital. In pursuance of the direction issued by the third respondent computed the liability of luxury tax at Rs. 70,687. Thereafterwards, according to the petitioner, the third respondent has been demanding payment of the determined luxury tax on pain of taking coercive action. 4.. Under these circumstances the petitioner has filed this writ petition. The prayer reads: "Fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his attendant for undergoing treatment. .................. (g) 'luxury provided in a hotel' means the accommodation for residence provided in a hotel including air-conditioning, television, radio, music, extra beds and the like but does not include the charges for food, drink and telephone calls. (gg) 'luxury provided in a hospital' means the accommodation provided in a corporate hospital for any patient or his attendant including air-conditioning, television, radio, or any other service provided thereto in connection with the residence but does not include any charges for the medical services rendered in connection with the treatment or any amount charged for conducting any medical test or any medicines used by the hospital either for check up or treatment; and (ggg) 'luxuries' include luxuries provided in a hotel, and corpo- rate hospital and any commodities as specified in the Schedule for enjoyment over and above the necessaries of life." (ii) The charging section 3 has been amended providing for levy and collection of tax in respect of accommodation provided by the hospitals for their patients/attendants for their residence during their post-operative period. It read ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itory of India not included in a State notwithstanding that such matter is a matter enumerated in the State List." 7.. Article 246 deals with the distribution of the legislative pow- ers as between the Union and the State Legislatures, with reference to the different Lists in the Seventh Schedule. The gist of the article, in short is that the Union Parliament has full and exclusive power to legislate with respect to matters in List I and has also power to legislate with respect to matter in List III. The State Legislature, on the other hand, has exclusive power to legislate with respect to matters in List II, minus falling in Lists I and III and has concurrent power with respect to matters included in List III. Article 246 pro- vides for the distribution, as between the Union and the States, of the legislative power which is conferred by article 245. It is true that since the legislative powers of the Legislatures of the Union and the States being limited by the provisions relating to distribution of powers and other mandatory limitations imposed by different provi- sions of the Constitution, a law passed without legislative competence is a nullity ab initio and nothing can be do ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing 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 ex- penditure on luxury although the expenditure may be of a nature which is incurred by a large number of people, including those not economically well off. According to 'Encyclopaedia Britannica', luxury tax is 'a tax on commodities or services that are considered to be luxuries rather than necessities'.....". 11.. It cannot be said that air-conditioned accommodation to the new born babies and the children and their attendants in a hospital is an absolute indispensable necessity. Be that as it may, in a given case, the question whether providing incubator and air-conditioned room to a newly born child is an indispensable necessity or not is always a question of fact. Therefore, an assessee under the Act can raise such plea before the Assessing Authority and contend that it is not liable to tax on the charges collected by it in providing incubators and the air condi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd. As against this, the United States of America has a Federal Constitution where the powers of the Congress and the State Legislatures to make laws in limited in two ways, viz., the division of legislative powers between the States and the Federal Government and the fundamental rights (Bill of Rights) incorporated in the Constitution. In India, the position is similar to the United States of America. The power of the Parliament or for that matter, the State Legislature is restricted in two ways. A law made by Parliament or the legislature can be struck down by courts on two grounds and two grounds alone, viz., (1) lack of legis- lative competence and (2) violation of any of the fundamental rights guaranteed in Part III of the Constitution or of any other constitu- tional provision. There is no third ground. We do not wish to enter into a discussion of the concepts of procedural unreasonableness and substantive unreasonableness-concepts inspired by the decisions of United States Supreme Court. Even in U.S.A. these concepts and in particular the concept of substantive due process have proved to be of unending controversy, the latest thinking tending towards a severe curtailment of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssive or unrea- sonable and quite another thing to say that the court can strike down enactment if it thinks it unreasonable, unnecessary or unwarranted". 12.. In S. Bharat Kumar v. Government of Andhra Pradesh 2000 (6) ALD 2 a Division Bench of this Court speaking through one of us (S.R. Nayak, J), has observed in para 27 as follows: "27. It is trite law that mandamus is the proper relief to be asked for where the petitioner seeks a declaration that an 'Act' or 'Ordinance' is unconstitutional and a consequential direction restraining the State and its Officers or the concerned statutory authorities, as the case may be, from interfering or giving effect to the provisions of such unconstitutional law. It is also trite law that the presumption is always in favour of the constitutionality of an enactment, and the burden is upon him who attacks it to show that there has been a clear transgression of constitutional principles and limits, whether it is a pre-constitution or post-constitution law. The position is well- settled by the judgments of the Apex court in Chiranjit Lal Chowdhuri v. Union of India [1950] SCR 869. In Madhu Limaye v. Sub-Divisional Magistrate AIR 1971 SC 2486 an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... void, either from want of constitutional power to enact it, or because the constitutional forms or conditions have not been observed, or where the law infringes the fundamental rights enshrined and guaranteed in Part III of the Constitution or any other substantive constitutional provisions. It is needless to state the Legislature and Judiciary are co-ordinate organs of the State, of equal dignity and status under the constitutional scheme. it is permissible for the Constitutional Courts to declare legislative enactments uncon- stitutional and void in some cases, but not because the judicial power is superior in degree or dignity to the legislative. The court while declaring a law as invalid or unconstitutional is only enforcing the legislative will and the limits imposed by the Constitution on the law-making bodies. No court can declare a statute unconstitutional and void, solely on the ground of unjust and harsh provisions, or because it is supposed to violated some natural, social, political or economic rights of the citizen, unless it can be shown that such injustice is, in fact, prohibited or such rights guaranteed or protected by the Constitution. Strictly speaking, the cour ..... X X X X Extracts X X X X X X X X Extracts X X X X
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