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TMI Blog2013 (2) TMI 776X X X X Extracts X X X X X X X X Extracts X X X X ..... e Act for the assessment years 2003-04 to 2007-08 treating the petitioner's establishment as a Hotel as defined under Section 2(e) of the said Act. The appeals filed against Ext.P2 order were disposed of with modifications. Aggrieved by the order, petitioner and the revenue filed appeals to the 2nd respondent Tribunal. By Ext.P3 common order, Tribunal allowed the appeals filed by the petitioner accepting the contention that its establishment is a Hospital and dismissed the appeals filed by the Revenue. 4. The Revenue challenged Ext.P3 order of the Tribunal in O.P. (C).1928/12. That Original Petition was disposed of by a Division Bench of this Court by Ext.P4 judgment. In that judgment, this Court allowed the Original Petition by setting aside the order of the Tribunal and the appeals were restored to the file of the Tribunal for considering the matter on merits after hearing the parties. It was directed that if the establishment is found to be a Hotel, the same should not stand in the way of the Tribunal sustaining the assessment as a Hotel and that if it is found to be essentially a Hospital, the levy will be only after the amendment to the Act in 2008. 5. The reasoning ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of Senior counsel appearing for the respondent that A/C cottages or luxury rooms provided in the hospital does not go against it's identity as a hospital, if it is engaged in treatment only. The question, however, to be considered is whether the establishment of respondent was essentially a hospital or it was essentially a tourist resort where extensive facilities for ayurvedic treatment and massage are also provided. We do not find anything in the Tribunal's order that they have considered the facts to identify the nature of operations in the respondent-resort. In fact, what the Tribunal should have done was to identify the nature of services with reference to the charges collected from the accounts made available by the department and based on this, the identity and activity of the resort should have been found out. It is thereafter the Tribunal should consider application of statutory provisions, particularly definitions and charging sections of the Luxury Tax Act. 6. This judgment has become final. Accordingly, appeals were heard afresh and the Tribunal disposed of the appeals by Ext.P5 common order. In this order Tribunal held that the petitioner's estab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of High Court's jurisdiction under Article 227 of the Constitution may be formulated: (a). A petition under Article 226 of the Constitution is different from a petition under Article 227. The mode of exercise of power by the High Court under these two articles is also different. (b). In any event, a petition under Article 227 cannot be called a writ petition. The history of the conferment of writ jurisdiction on High Courts, is substantially different from the history of conferment of the power of superintendence on the High Courts under Article 227 and have been discussed above. (c). High Courts cannot at the drop of a hat, in exercise of its power of superintendence under Article 227 of the Constitution, interfere with the orders of tribunals or courts inferior to it. Nor can it, in exercise of this power, act as a court of appeal over the orders of the court or tribunal subordinate to it. In cases where an alternative statutory mode of redressal has been provided that would also operate as a restrain on the exercise of this power by the High Court. (d). The parameters of interference by High Courts in exercise of their power of superintendence h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppreciation of the wide and unfettered power of the High Court under Article 227, it transpires that the main object of this article is to keep strict administrative and judicial control by the High Court on the administration of justice within its territory. (m). The object of superintendence, both administrative and judicial is to maintain efficiency, smooth and orderly functioning of the entire machinery of justice in such a way as it does not bring it into any disrepute. The power of interference under this article is to be kept to the minimum to ensure that the wheel of justice does not come to a halt and the fountain of justice remains pure and unpolluted in order to maintain public confidence in the functioning of the tribunal and courts subordinate to the High Court. (n). This reserve and exceptional power of judicial intervention is not to be exercised just for grant of relief in individual cases but should be directed for promotion of public confidence in the administration of justice in the larger public interest whereas Article 226 is meant for protection of individual grievance. Therefore, the power under Article 227 may be unfettered but its exercise is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ooms, billiard rooms, conference hall, art gallery, services of astrologer and palmist, pedicure and manicure facilities, cultural programmes and sightseeing tours etc, are special features associated with the amenities and services provided in a hotel and health resorts rather than that of a hospital. It is seen that these facilities amenities and services were provided by the assessee to satisfy the customers who are coming for rest and to bring back freshness or to revitalize the body and soul, along with luxury. 13. Tribunal made reference to the guest registration card details and connected documents kept at the petitioner's office and found that the majority of the guests have filled up the concerned column by stating that the purpose of visit as holiday, vacation, pleasure, leisure, sight seeing etc., . On this basis Tribunal concluded that the guests had arrived at the petitioner's establishment with no intention for treatment for any disease but to enjoy holidays. 14. The impugned order shows that the Tribunal has accepted the fact that Ayrvedic treatment is also provided in the establishment. However, Tribunal found that the Hospital is a place intended ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n this basis, Tribunal inferred that if the guests were treated for any ailment, amount will be collected separately in addition to the charges for the package opted. 18. Tribunal has also gone into the details of Ayurveda packages and leisure packages and found that the charges realized differs depending upon the type of villa, one has opted for. Tribunal has given the details of the charges collected and found that the lion portion of the package is related to the room rent alone. 19 Section 2(e) defines 'hotel' as a building or part of a building where residential accommodation by way of business is provided for monetary consideration and includes a lodging house. The expressing luxury provided in a hotel is defined in Section 2(f) of the Act to mean accommodation for residence or use and other amenities and services, provided rupees one hundred and fifty or more, is charged daily, excluding for food and liquor. The expression 'luxury' has been defined in Section 2(ee) of the Act to mean a commodity or service that ministers comfort or pleasure. The factual findings arrived at by the Tribunal show that the petitioner's establishment answers the defini ..... X X X X Extracts X X X X X X X X Extracts X X X X
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