RAJAJI HOTEL PRIVATE LTD. v. SECRETARY TO GOVERNMENT OF TAMIL NADU, CHENNAI
2006-11-28
K.RAVIRAJA PANDIAN
body2006
DigiLaw.ai
ORDER K. RAVIRAJA PANDIAN, J. - The writ petitions are filed seeking for the relief of issuance of writ of certiorarified mandamus to call for the proceedings of the third respondent in TNGST Nos. 591381/1985-86 to 1988-89; set aside the assessment orders dated September 20, 2006 and further direct the first respondent to pass orders by including the name of the petitioner in G.O.Ms. No. 140 dated June 11, 1999 on par with the other hotels similarly situated in the light of the orders passed by the Supreme Court of India in Civil Appeals Nos. 101 and 102 along with 670 of 1995 dated July 18, 1996 (Hotel River View v. State of Tamil Nadu). The petitioner is a hotel recognised by the Tourism Department of Government of India. The respondent - State inserted entry No. 150 of the First Schedule to the Tamil Nadu General Sales Tax Act, 1959 with effect from October 6, 1980 imposing ten per cent of sales tax on articles of food and drinks sold to the customers in three-star, four-star and five-star hotels recognised by the Tourism Department of the Government of India. The said entry was challenged in a number of writ petitions. Ultimately, on January 21, 1985, this court in the case of Sangu Chakra Hotels Private Limited v. State of Tamil Nadu [1985] 60 STC 125 has struck down the entry. On appeal to the Supreme Court, the judgment of the High Court was reversed on February 21, 1990 by judgment reported in [1990] 77 STC 253 (Kerala Hotel & Restaurant Association v. State of Kerala). While that being so, on March 25, 1989 entry 150 was deleted by the State Government. In view of the interim order granted by the court during the pendency of the writ petitions challenging the entry 150 before the High Court, till it was deleted on March 25, 1989, the petitioner did not collect tax on the sale transaction in its hotel. In view of the judgment of the Supreme Court in the case of Kerala Hotel & Restaurant Association v. State of Kerala [1990] 77 STC 253 which is the law of the land, from October 6, 1989 onwards, the State is legally entitled to collect tax. The petitioner and several other hoteliers requested the Government to waive tax during the interregnum period in view of the aforesaid fact.
The petitioner and several other hoteliers requested the Government to waive tax during the interregnum period in view of the aforesaid fact. As no orders were passed on the waiver applications, a batch of writ petitions was filed by the hoteliers for issuance of mandamus directing the Government not to levy and collect tax under entry 150 till orders were passed on the waiver application. As there was no fruitful result, the petitioner and others moved the Supreme Court. The Supreme Court by its interim order dated February 8, 1996 in Civil Appeals Nos. 101-102 and 619 to 670 of 1995 (Hotel River View v. State of Tamil Nadu) directed the respondent - Government to pass orders on the waiver application. The Government then issued G.O.Ms. No. 157 dated April 22, 1996 directing the waiver for the period from February 1, 1985 to April 21, 1989 and in the said Government Order, the Joint Commissioner was appointed with the specific direction to go through various records of the hoteliers and report his findings with facts to the Government so as to enable the Government to decide on the eligibility of the waiver in each of the individual cases. It is the case of the petitioner that the petitioner appeared before the said Joint Commissioner and filed all details to prove that it is entitled to the benefit given under the said G.O. The Supreme Court disposed of the civil appeals in terms of the respondent's order under G.O.Ms. No. 157 dated April 22, 1996. On verification of the records and the report of the Joint Commissioner, the respondent/State issued G.O.Ms. No. 140 dated June 11, 1999 granting waiver for the period from February 1, 1985 to March 24, 1989. Though, under the said G.O., several other hoteliers were granted waiver, the petitioner's name was left out and it came to the notice of the petitioner only when the second respondent issued a notice on October 13, 2005 directing the petitioner to remit tax for the assessment years 1985-86 to 1988-89. The petitioner sent a detailed representation on October 17, 2005 to the second respondent enclosing all the relevant materials.
The petitioner sent a detailed representation on October 17, 2005 to the second respondent enclosing all the relevant materials. The petitioner also moved the first respondent on January 24, 2006 requesting to issue an errata including the name of the petitioner in the said G.O. and also for a direction to the second respondent not to recover tax till its name was included. No orders have been passed till date. Meanwhile, the second respondent issued the impugned assessment order dated September 20, 2006 and also a notice of demand in form B3. Hence, these writ petitions with the prayers stated above. Mr. Ramani, learned counsel appearing for the petitioner argued in line with the facts as above-stated. However, when pointed out as to how a writ of certiorari can be maintained as against the order of assessment, he fairly submits that though the prayer is widely couched, as the petitioner has approached the second respondent as well as the first respondent by its representation dated January 24, 2006, it would be sufficient if a direction is issued to the respondents to consider the request of the petitioner. He also pointed out that it is the petitioner, who carried the matter to the Supreme Court in Civil Appeals Nos. 101, etc., of 1995 and in view of the interim order given by the Supreme Court and the Government Order for waiver, there is no reason as to why the petitioner's name has not been included in G.O.Ms. No. 140, which is the outcome of the report submitted by the Joint Commissioner. I heard the learned counsel for the petitioner and perused the materials available on record. I also heard the learned Government Advocate. Having regard to the above submissions made by the learned counsel for the petitioner restricting his prayer for a direction to second respondent to consider the petitioner's request with reference to the materials supplied by them along with the representation dated January 24, 2006 and in the light of the G.Os. 157 and 140, I am of the view that such a direction can be issued to the respondents. Hence, there shall be a direction to the respondents to dispose of the representation of the petitioner dated January 24, 2006 on the basis of the materials placed by the petitioner with reference to G.O.Ms. No. 157 dated April 22, 1996 and G.O.Ms.
Hence, there shall be a direction to the respondents to dispose of the representation of the petitioner dated January 24, 2006 on the basis of the materials placed by the petitioner with reference to G.O.Ms. No. 157 dated April 22, 1996 and G.O.Ms. No. 140 dated June 11, 1999 in accordance with law within a period of six weeks from the date of receipt of a copy of this order. The writ petitions are disposed of in the above terms. No costs. The connected miscellaneous petition is closed.