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TMI Blog2016 (9) TMI 970X X X X Extracts X X X X X X X X Extracts X X X X ..... ulam. The issue relates to penalty orders being passed against the petitioner in W.P.(C) No.20226 of 2011 under the Kerala Tax on Luxuries Act, 1976. T.A.Nos.284/2009 and 285/2009 were filed by the petitioner in W.P.(C) No.20226 of 2011 and T.A.(VAT) Nos.386/2009, 387/2009 and 388/2009 were filed by the State of Kerala with respect to the very same issue. 2. The question that had arisen for consideration in the appeals, was regarding the bifurcation of luxury tax as far as the usage of Banquet Hall and Poolside area for serving food as well as conducting other services are concerned. By an amendment which had come into force on 28.7.2006, Rule 3 C had been incorporated in the Kerala Tax on Luxuries Rules, 1976. By virtue of the aforesaid p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... basis of the assessment orders for the year 2005-2006 to 2007- 2008. 4. In an appeal filed before the Deputy Commissioner (Appeals), the penalty for the year 2005-2006 was set aside. Further it was found that there was no reason to impose penalty on the amount involved as far as the Poolside area is concerned whereas, the penalty imposed for not levying luxury tax in respect of the Banquet Hall was confirmed. Appeals were filed before the Tribunal by the State ie, T.A.Nos.387/2009 and 388/2009 were dismissed and appeal No.386/2009 in respect of penalty order for assessment years 2005-06 has been allowed and thereby imposing penalty on the petitioner for that assessment year as well. However, the penalty had been reduced to an amount equal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... intention on the part of the petitioner to evade any tax whereas only issue was regarding bifurcation of the tax, viz; VAT as well as luxury tax. It is submitted that after initiation of proceedings, the petitioner had already corrected the same and presently, it is being done in accordance with the statutory format. 7. On the other hand, learned Government Pleader while supporting the Tribunal's stand with reference to imposition of penalty, submits that the penalty ought to have been imposed for usage of poolside area also which is the subject matter in W.P.(C) No.24497 of 2011. 8. A counter affidavit also is filed in W.P.(C) No.20226 of 2011, by which they supported the stand taken by the Tribunal, which is being challenged by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e any other evidence to delineate the components of charges levied on the food bill. In that view of the matter, there is nothing wrong on the part of the Authority to apply the components under Rule 3C of the Rules to arrive at a calculation for the purpose of luxury tax. Though, Rule 3C would not apply, its yardstick can be applied to arrive at a best judgment. Therefore, I do not find any infirmity with the calculation of the luxury tax. 6. The learned Senior Counsel for the petitioner submits that the petitioner has already paid 12.5% VAT on full value of the banquet sales, the same has to be given credit by bifurcating rent and food sale. I do find merit in this argument. Since the petitioner has already paid VAT on full value on banq ..... X X X X Extracts X X X X X X X X Extracts X X X X
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