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TMI Blog1994 (7) TMI 83X X X X Extracts X X X X X X X X Extracts X X X X ..... ' case [1989 (5) TMI 52 - SUPREME Court] has held that the four legislations dealt with therein were under entry 62, List II, Schedule VII, Constitution of India. On similar reasoning the Act would also be a legislation under the same entry, and as such within the competence of the Jammu and Kashmir Legislature. We also agree with the reasoning and the conclusions reached by the High Court. There is no force in the contention that the Act is a legislation under entry 82, List I, Schedule VII, Constitution of India. We, therefore, see no ground to interfere with the Division Bench judgment of the High Court. The appeals/writ petitions are dismissed. - Civil Appeal No. 3069, 3070 of 1981, 29, 188 of 1982, 92 of 1983, & 3341 of 1988, W.P. (C) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nities and services in a hotel in the State. Section 2 is the definition clause and defines, inter alia, the expressions " amenities and services " and " hotel " occurring in clauses (c) and (j), respectively, which are as follows : "(c) 'amenity and service' includes lodging, boarding, massaging, bathing, hair dressing, and beauty parlour facilities and providing entertainment and other facilities, whether charged/chargeable jointly or separately ; (j) 'hotel' means any premises or part of premises including a hut, house-boat, tent, guest house, rest house or a club occupied by resident or casual visitors with or without board, service and amenities in consideration of a tariff and includes a restaurant excluding the portion used as a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... liable to pay tax under the Act, the assessment and collection of tax, the imposition of penalty, the payment of tax and penalty, appeals, revision, etc. The main contention raised by the appellants before the High Court was that the levy of tax is on the gross receipts of the " hotel keeper " and as such it is a tax on " income " which could only be imposed by Parliament under entry 82, List I, Schedule VII, Constitution of India. The High Court referred to section 13 of the Act which authorised the " hotel keeper " to charge the tax due from the customers. It further noticed that the taxing event under the Act is not the receipt of gross income by a " hotel keeper " but is in fact the provision of amenities and services by him to his c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he State Legislatures under entry 62, List II of the Seventh Schedule to the Constitution of India. This court dismissed the writ petitions of the hotel owners and upheld the validity of the State legislations. All the four taxing statutes before this court in Express Hotels' case [1989] 178 ITR 151 ; [1989] 74 STC 157; [1989] 2 SCR 893 were analogous to the Act and the scheme of the legislations was substantially similar. The following contentions, inter alia, were raised before this court in Express Hotels' case [1989] 178 ITR 151 ; [1989] 74 STC 157; [1989] 2 SCR 893 : " (a) The taxation entry 62 of List II providing for taxes on 'luxuries' contemplates, and takes within its sweep, a tax on goods and articles in their aspect and charac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... called articles of luxury. But the legislative entry cannot be exhausted by these cases, illustrative of the concept. The entry encompasses all the manifestations or emanations the notion of 'luxuries' can fairly and reasonably be said to comprehend and the element of extravagance or indulgence that differentiates 'luxury' from 'necessity' cannot be confined to goods and articles. There can be elements of extravagance or indulgence in the quality of services and activities.... We are presently concerned with the question whether the quality or standards of lodging accommodation in hotels can be called luxurious by contemporary standards by reason of the higher standards of charges payable for the accommodation. The Legislature has chosen to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spond to matters specified in the Instrument of Acces sion governing the accession of the State to the Dominion of India as the matters with respect to which the Dominion Legislature may make laws for that State ; and (ii) such other matters in the said Lists as, with the concurrence of the Government of the State, the President may by order specify..... (d) such of the other provisions of this Constitution shall apply in relation to that State subject to such exceptions and modifications as the President may by order specify." By the Presidential Order, made under article 370(1) called the Constitution (Application to Jammu and Kashmir) Order, 1954, the provisions of the Constitution of India were extended and made applicable to the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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