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TMI Blog2015 (11) TMI 1146X X X X Extracts X X X X X X X X Extracts X X X X ..... find out whether any facility is a luxury or otherwise. It is further observed that the facility so provided should be costly and generally recognised as beyond the necessary requirement of an average member of the society” - If this test is considered, any facility like the air-conditioner and television provided to the patient or his attendant in a private hospital should definitely be construed as a luxury and liable for luxury tax. Besides, the Assam legislature has brought about an amendment to the Assam Tax on Luxuries (Hotels and Lodging Houses and Hospitals) Act, 1989, specifically to define the “luxuries provided in a hospital” with a determinate connotation. The said definition includes the facilities like air-conditioner and tele ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his attendant for charges including the charges for air conditioning, television or radio, or any other service provided thereto in connection with the residence but does not include any charges for food, medicines, professional medical services and any medical test . 3) The all-Assam Non-government Health Establishment Association, formed by the private hospitals and nursing homes, have filed the above petitions challenging the validity of the levy of luxury tax. 4) Dr Ashok Saraf, the learned senior counsel for the petitioners, relied on the decision of the Supreme Court in Godfrey Phillips India Ltd and another v. State of U.P. and others[(2005) 2 SCC 515] and made a specific reference to the observations of the Supreme Court in pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) 2 SCC 141,145 although doubted in its indiscriminate application in State of Bombay vs. Hospital Mazdoor Sabha : AIR 1960 SC 610. In the latter case this Court was required to construe Section 2(j) of the Industrial Disputes Act which read: Section 2(j) provides that 'industry' means any business, trade, undertaking, manufacture or calling of employers and includes any calling, service, employment, handicraft or industrial occupation or avocation of workmen . 81. We are aware that the maxim of noscitur a sociis may be a treacherous one unless the 'societas' to which the 'socii' belong, are known. The risk may be present when there is no other factor except contiguity to suggest the 'societas'. But wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the hospitals where the facilities like air-conditioner and television are provided to the patient or his attendant during their stay at the hospital for treatment. 7) Upon through consideration of the submissions made at the Bar and the decisions cited it is pertinent to note that in para 83 of its judgment in Godfrey(supra) the Supreme Court has laid down the test to determine whether the facility is a luxury or otherwise, the requirements of the common man is a determinative factor to find out whether any facility is a luxury or otherwise. It is further observed that the facility so provided should be costly and generally recognised as beyond the necessary requirement of an average member of the society . If this test is considered ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (b) where the charge for luxury provided in a hospital is rupees one thousand or more but does not exceed two thousand five hundred rupees per day per room. Five percentum of turnover of receipts. (c) where the charge for luxury provided in a hospital exceeds two thousand five hundred rupees per day per room. Eight percenum of turnover of receipts. (3) The tax levied under sub-section (1) shall be paid by the proprietor . 10) The rate of tax is variable as per the luxury provided in a hospital. If only a room is provided without having the facility of air-conditioner and television, such a situation would not come within ..... X X X X Extracts X X X X X X X X Extracts X X X X
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