Judgment: 1. Constitutional validity of the Kerala Tax on Luxuries Act 1976 (herein after referred to as the ‘KTL Act’), particularly Sections 4, 10, 15 and 16 forms the majo0r challenge involved in these writ petitions. In W.P.(C) Nos.33681 of 2006 and 18545 of 2007 (filed by the same petitioner) the revised assessment orders passed in exercise of the powers conferred under Section 6(5) of the Act are also under challenge on various grounds. 2. The main grievance is with regard to the reckoning of the disputed turnover in respect of the Ayurveda treatment, Laundry charges, Beauty Parlour, Boating charges, Swimming pool charges etc., to fix the tax liability, which were not completely taken at the time of passing the original assessment orders. It is also contended in some of the writ petitions that the above provision ie., Section 6(5), having been brought about only as per the Act 41 of 2005 w.e.f. 28.08.2005, the same could not have been pressed into service for revision the assessments already passed, referring to the ‘escaped turnover’ in respect of the assessment periods/years of much prior to the said date. 3. In W.P.(C) No.22357 of 2004, the petitioner was served with Exts. P1 and P2 assessment orders under Section 6(2) of the Act on best judgment basis, in respect of the assessment years 2001-02 and 2002-03, also reckoning the turnover in respect of the Ayurveda treatment and Laundry charges as well, besides effecting some additions to the turnover returned. On challenging the same by way of appeal, Ext.P3 Common appellate order was passed by the appellate authority deleting the additions made, however sustaining levy of luxury tax on the charges collected for Ayurveda treatment and Laundry charges. Pursuant to Ext.P3, revised assessment orders have been passed as borne by Exts.P4 and P5, also issuing demand notices for the balance amount with interest. The petitioner is aggrieved of the said proceedings and seeks to quash Exts.P1 tp P5 to the extent, tax is imposed for Ayurveda treatment and Laundry charges and also to declare that levy of interest is illegal and unauthorized, as interest can be demanded only after issuing the original assessment order dated 18.06.2003, prior to which the petitioner was not a defaulter. Since the petitioner has effected payment of tax in the meanwhile, refund is claimed in this regard. 4. Since the petitioner has effected payment of tax in the meanwhile, refund is claimed in this regard. 4. The Petitioner is the same in W.P.(C) 33681 of 2006 and 18545 of 2007. The proceedings under challenge in W.P.(C) No.33681 of 2006 are in respect of the assessment years 2000-01 to 2003-04; while the dispute in the other case is with regard to the assessment year 2004-05. 5. In W.P.(C) No.33681 of 2006, Ext.P1 original assessment order for the year 2000-01 was passed on 30.10.2005, assessing a portion of the charges collected by the petitioner through engagement of some outside agencies, particularly towards Ayurveda treatment, Beauty Parlour, Boating, Travel charges, Trekking charges etc. Similar orders were passed in respect of the other three assessment years (2001-02, 2002-03 and 2003-04) as well. As per Section 4 of the Act, the charges for accommodation and amenities and services provided in a Hotel (excluding for food, drinks and telephone) alone are liable to be taxed at the relevant rates, based on the quantum of charges collected, which requirement is stated as satisfied by the petitioner filing returns and remitting the tax due. However, certain services were extended by outside agencies to the residents as well as non-residents in the Hotel. According to the petitioner, in respect of such services, the petitioner has only functioned as a collection agent, agreeing to have ‘commission’ and these figures have also been duly accounted upon which there could have been any luxury. However, 1/10th of the said amounts was also reckoned as taxable turnover by the assessing authority, whole passing Ext.P1 original assessment order. Later, the petitioner was served with Ext.P2 notice for the year 200001 (and similar notices for the other three assessment years as well) under Section 6(5) of the Act, as to the steps being taken to assess the ‘escaped turnover’ and seeking for objections, if any. 6. On receipt of Ext.P2, the above petitioner submitted Ext.P3 objection dated 30.08.2006 and this was stated as supplemented by Ext.P4 dated 22.09.2006, also asking for an opportunity of hearing. However, the proceedings were finalized by the assessing authority as per Exts.P5 to P8 orders dated 18.09.2006, re-fixing the tax liability under Section 6(5) and the differential amount was demanded with interest as per Exts.P9 to P12 notices, which are under challenge. However, the proceedings were finalized by the assessing authority as per Exts.P5 to P8 orders dated 18.09.2006, re-fixing the tax liability under Section 6(5) and the differential amount was demanded with interest as per Exts.P9 to P12 notices, which are under challenge. With reference to Ext.P13 copy of the Act 41 of 2005 published in the Gazette dated 28.08.2005, it is contended that, since sub-section (5) of Section 6 was introduced only with effect from that date, there was no question of any’ escaped turnover’ or assessment of any such turnover, (which was actually dealt with by the assessing authority while passing Ext.P1 original assessment order) in respect of the assessment years prior ot the date of introduction of the provision. It is also contended that, by virtue of the ‘explanation’ given in Ext.P13 (the amendment Act), the liability to ay tax or other amount shall arise only from the date specified in the revised notice and hence there is no room for charging any interest as well. It is further point out that the entire Turnover was duly accounted and the disputed extent was also there before the assessing authority, who though it fit to include only 1/10th of the same while passing Ext.P1 order. The revised assessment orders have been caused to be passé merely by change of opinion which is not permissible in law, as held by the Apex Court in Binani Industries Limited vs. Assistant Commissioner of Commercial Taxes [(2007) 6 VST 783 (SC)]. 7. In W.P.(C) No.18545 of 2007 (preferred by the same petitioner in W.P.(C) No.33681 of 2006) pertaining to the assessment years 2004-05, the original proposal was opposed by filing Ext.P5 objection dated 27.02.2007, which however was not accepted when Ext.P2 order was passed on 17.03.2007. Later, the turnover in respect of some other additional heads was also sought to be reckoned and notice was issued under Section 6(5), proposing to have revised assessment of the ‘escaped turnover’, which was objected to, by filing Ext.P9 dated 07.05.2008. It was however rejected and Ext.P7 revised assessment order was passed on 12.05.2008, which is under challenge in this writ petition, besides challenging the constitutional validity of the statute. It was however rejected and Ext.P7 revised assessment order was passed on 12.05.2008, which is under challenge in this writ petition, besides challenging the constitutional validity of the statute. It is contended that, in view of the introduction of a new entry vide entry 92C ‘tax on services’, in List I of the 7th Schedule of the Constitution of India, the legislation made by the State with reference to Entry 62 of List II, is bad in law, in view of the apparent inconsistency between the Central Law and the State Law. 8. In W.P.(C)No.12611 of 2008, the first petitioner, is an assessee who is running a Hotel and the second petitioner is an ‘Association’ of approved and classified Hotels in kerala, who is stated as having 50 members and as such, the balance/deficit Court fee has been satisfied as per the memo dated 24.10.2011. No particular assessment order is under challenge in this writ petition and the sole prayer is to declare that Section 4 of the Act and the rules made thereunder are unconstitutional, being covered by ‘service tax’ under Entry 92C of List I of the 7th Schedule. 9. The concerned respondents have filed counter affidavits pointing out that the challenge against the Statute is wrong and misconceived. The concerned assessment orders, invoking the power under Section 6(5) of the KTL Act, fixing the tax liability in respect of the escaped turnover’ are also sought to be sustained, for the reasons stated therein. 10. Dr. K.B. Muhammed Kutty, the learned Sr. Counsel appearing for the petitioners in all the cases submits that the nature of business being transacted by the petitioners while providing Hotel accommodation to the residents, providing some facilities like Ayurveda treatment, Laundry facility, Boating Travel arrangements, Trekking etc., by engaging outside agencies, is not liable to be taxed under the ‘KTL Act’ primarily for the reason that it is not a service rendered by the petitioners in the hotel but by somebody else, elsewhere, for which the petitioners are collecting only a ‘commission’. It is also stated that the business of like nature, being pursued by independent agencies outside the Hotel is not being taxed at their hands; which when made available through the petitioners, strangely becomes taxable, where the instance of discrimination is evidence. The learned Sr. It is also stated that the business of like nature, being pursued by independent agencies outside the Hotel is not being taxed at their hands; which when made available through the petitioners, strangely becomes taxable, where the instance of discrimination is evidence. The learned Sr. Counsel submits that the terms ‘amenities and services’ re not defined under the statute, which gives unbridled power to the assessing authority and hence the statute is bad in law. The impugned revised assessment orders have been passed merely on the change of opinion of one office, substituting it with that of another and hence is hit by the law declared by the Apex Court in Binami Industries Limited vs. Assistant Commissioner of Commercial Taxes [(2007) 6 VST 783 (SC)] 11. Referring to the amendment to the statute as per the Act 41 of 2005 published in the Kerala Gazette dated 28.08.2005 (Ext.P13), the learned Sr. Counsel submits that sub section (5) to Section 6 was brought into existence for dealing with the ‘escaped assessment’ only from that data and it cannot have any retrospective operation. It is not a case of pending assessment, as the assessment had already been finalized and the assessment prior to the date of introduction of Section 6(5) cannot be subjected to reassessment or raised assessment, alleging that any turnover has escaped from the assessment made earlier. Reliance is sought to be placed on ‘Clause 6’ of the General Clause Act and also on the decision rendered in State of Punjab and others vs. Bhajan Kaur and others [(2008) 12 SCC 112=2008 (2) KLLT 628)to contend that the provision cannot have any retrospective application. 12. The learned Sr. Counsel submits that equal vehemence that the Government itself realized the mistake and the scope of the statute was clarified by introducing a ‘proviso’ to Section 4(2) as per the Finance Act, 2007 w.e.f. 01.04.2007, making it clear that no luxury tax shall be payable for such charges received in respect of the services rendered outside the Hotel premises; such as Vehicle hire, Boat hire, Trekking etc. The learned Sr. Counsel submits that since the proviso is clarificatory, its operation goes back to the roots, as per the law declared by the Apex Court in S.Sundaram vs. V.R. Pattabhiraman (AIR 1985 SC 582). The learned Sr. Counsel submits that since the proviso is clarificatory, its operation goes back to the roots, as per the law declared by the Apex Court in S.Sundaram vs. V.R. Pattabhiraman (AIR 1985 SC 582). It is contended that Section 4 of the Act is unconstitutional, also for the reason that in renting out room for accommodation, no activity is involved, which is essential for the purpose of taxation so a to constitute ‘luxury’ as made clear by the Apex Court in Godfrey Philips India Limited and another vs. State of Uttar Pradesh and others {(2005) 13 KTC 89 (SC)] by virtue of which, the view expressed by the Apex Court earlier in Express Hotels Pvt. Ltd. vs. State of Gujarat (1989)74 STC 157] is stated as no longer good law. The lerned Counsel also submits that the ‘proviso’ to Section 4(2) having been introduced only as per the Finance Act, 2007, the declaration of law by this Court in Casino Hotels vs. State of Kerala [(2007) 15 KTR 485 (Ker.)] and Kovalam Ashok Beach Resort Hotel vs Sales Tax officer (Reserve0 and another {(2006) 14 KTR 417 (Ker.)] declaring the constitutional validity of statute requires a re-look. 13. Mr. Sojan James, the learned Spl. Government Pleader (Taxes) submits that the issue is actually covered by the decisions rendered by the Supreme Court and also by this Court especially with regard to the validity of the statute, more particularly, the power of the State of give rise to the enactment, with reference to the power under Entry 62 of List II of the 7th Schedule. Reliance is also sought to be placed on decision in Federation of Hotel and restaurant Association of India and others vs. union of India and others [(1989) 178 ITR 97), which was followed by a learned Judge of this Court while passing the judgment in O.P.No.34635 of 2002 and connected cases. The constitutional validity of the statute was also considered by a Division Bench of this Court, upholding the same as per the verdict in Asianet Satellite Communications Ltd. & another s. State of Kerala and another [(2010) 18 KTR 1 (Ker.)]. The constitutional validity of the statute was also considered by a Division Bench of this Court, upholding the same as per the verdict in Asianet Satellite Communications Ltd. & another s. State of Kerala and another [(2010) 18 KTR 1 (Ker.)]. It is pointed out that the charges collected for Ayurveda treatment, Laundry services and Boating arrangement by a Hotel are very much exigible to luxury tax, as held by a learned Judge of this Court in Casino Hotels vs. State of Kerala [(2007) 15 KTR 485 (Ker.)] and in Kovalam Ashok Beach Resort Hotel vs Sales Tax Officer (Reserve) And another [(2006) 14 KTR 417 (Ker)]. 14. Coming to the validity of the statute, it is to be noted that, the Statute has stood the test of time for more than 35 years, having been enacted as early as in the year 1976. The main ground of challenge now raised is that, by virtue of the new entry 92C to List I [(Union List), for taxing the services, the enactment made by the State, by virtue of the entry 62 of the List II of 7th Schedule, has to go and it has to yield to the former. At the very outset it is to be noted that the power of the Central Government to tax the ‘services’ is entirely different from the power of the State to tax the ‘luxury’. Some services may amount o luxury, but all services can never be treated as luxury. It is based on the legislative wisdom of the State, that, which of the services amounting to luxury should be taxed, is being decided by the State, giving shape to appropriate enactment, invoking the power under Entry 62 of List II of 7th Schedule. This being the position, there cannot be any successful challenge referring to the alleged overlapping or encroachment into the field earn armed for the Center. Merely for the reason that an additional entry has been provided as Entry 92C to List I, it cannot make the State List nugatory or make the law enacted by the State on the basis of such entry decades back as ad in law. 15. Merely for the reason that an additional entry has been provided as Entry 92C to List I, it cannot make the State List nugatory or make the law enacted by the State on the basis of such entry decades back as ad in law. 15. It is profitable to make a reference to the decision rendered by the Constitution bench of the Supreme Court in Federation of Hotel & Restaurant Association of India and others vs. Union of India and others [(1989) 178 ITR 97]. Three different batches of cases were being considered by the Apex Court and one such series involved a challenge against the Expenditure Tax Act, 1987. The said Act envisaged a tax at 10 per cent ad valorem on ‘chargeable expenditure’ incurred in the class of Hotels wherein “room-charges” for any unit of residential accommodation were Rs.400/- per day per individual. The ‘chargeable-expenditure’ as defined in Section 5 of the Act includes expenditure incurred in or payments made in such class of Hotels in connection with the provision of any accommodation, residential or otherwise, food or drink whether at or outside the Hotel, or for any accommodation in such Hotel on hire or lease or any other services envisaged in that Section. However, any expenditure incurred in or paid for, in “foreign exchange’ or by persons who enjoy certain diplomatic privileges and immunities was exempted. The challenge to the vires of the above ‘Act’ was on grounds of lack of legislative competence and of violation of the rights under Arts.14 and 19(1)(g); which however was sought to be sustained by the Union, referring to Article 248 of the Constitution, read with Entry 97 of List I of the Seventh Schedule. 16. After considering the specific ground of challenge that it was a subject which could not have been enacted by the Parliament, the Apex Court observed that it did not relate to the aspect of ‘Luxury contemplated under Entry62 of List II of the 7th schedule, but related only to the aspect of ‘expenditure’ and was within the legislative competence of the Parliament falling under the residuary Entry 97 of List I, It was also held that the Act was never violative of Article 14 or Article 19(1)(g). The Bench observed that, wherever legislative powers were distributed between the Union and the State, situations may arise where the two legislative fields might apparently overlap. The Bench observed that, wherever legislative powers were distributed between the Union and the State, situations may arise where the two legislative fields might apparently overlap. According to the Apex Court, It was the duty of the Courts, however difficult it may be, to ascertain, to what degree and to what extent, the authority to deal with matters falling within these classes of subjects exists in each Legislature and to define in the particular case as to the limits of the respective powers; alerting that it could not have been the intention that a conflict should exist and in order to prevent such a result, the two provisions must be read together, and the language of one interpreted and where necessary, modified by that of the other. 17. While concurring with the other learned Judges, the Honourable Mr. justice S. Ranganathan highlighted some other aspects as well. It is discernible there from that the specific State legislations which were under challenge in the petitions and appeals before the Apex Court were: (a) Gujarat Tax on Luxuries (Hotels and Lodging Houses) Act (No. 24 of) 1977 (C.A. 338, 339/ 1981; W.P. Nos. 7990, 8338, 8339, 9110 of 1981) (b) Tamil Nadu Tax on Luxuries in Hotels and Lodging Houses Ordinance, 1980 followed by an Act (Act No. 6 of 1981) (WP 162 of 1982) (c) Karnataka Tax on Luxuries (Hotels and Lodging Houses) Act (No. 22 of) 1979 (WP 1271 – and 1272 of 1982) (d) West Bengal Entertainments and Luxuries (Hotels and Restaurants) Tax Act (No. 21 of) 1972 (WP 5321 of 1985). Reference was also made to similar enactments made by the State of Uttar Pradesh, Maharashtra and Kerala as given below: Uttar Pradesh taxation and Land Revenue Laws Act, (No.8) of 1975; a. Maharashtra Tax on Luxuries (Hotels and Lodging Houses) Act (XLI of) 1987; and b. Kerala Tax on Luxuries in Hotels and Lodging Houses Act (No. 32 of) 1976 repealing Kerala Ordinance No. 5 of 1976. The enactment of the above State laws, based on the power conferred under Article 246(3) of the Constitution, read with entry 62 of List II of the Seventh Schedule to the Constitution of India, was discussed in detail. The enactment of the above State laws, based on the power conferred under Article 246(3) of the Constitution, read with entry 62 of List II of the Seventh Schedule to the Constitution of India, was discussed in detail. Referring to the decision rendered in A.B. Abdul Kadir vs. State of Kerala [AIR 1976 SC 182] and other relevant aspects, it was held that the learned Judge was in full agreement to have the validity of the enactment made by the Gujarat State upheld and it was made equally applicable to the other impugned State enactments as well, which were upheld and the decision of the Bench was pronounced accordingly. 18. When O.P.No.34635 of 2002 came up for consideration before a learned of this Court, along with W.P.(C) 26148 of 2003, wherein the validity of the Kerala Tax on Luxuries Act, 1976 was under challenge, it was held by the learned Judge that the constitutional validity of the Act stands already covered by the decision of the Apex Court in Federation of Hotel & Restaurant Association of India and others vs. Union of India and others [(1989) 178 ITER 97],. Following the said decision, the validity of the statue was upheld as per the judgment dated 29.06.2004 in the aforesaid cases. 19. Constitutional validity of the ‘KTL Act’ came up again for consideration before a Division Bench of this Court in Asianet Satellite Communications Ltd. & Another vs. State of Kerala and another [(2010) 18 KTR 1 (Ker.). The issue considered therein was with regard to the levy of luxury tax in respect of Cable TV Operators. The levy of service tax by the Union Government of cable TP Operators under the Finance Act, 1999 was held as not a bar for levy of luxury tax under the State Act, following the dictum laid down by the Apex Court in Bharat Sanchar Nigar Ltd. & Anr. Vs. Union of India and others[(2006) 145 STC 91]. After considering the relevant provisions of law and the binding judicial precedents, it was held that the challenge raised against the constitutional validity of the statute was quite wrong and misconceived and that it came very much within the right and powers of the State to have legislated the statute with reference to the power derived from the source of entry 62 of List II of the 7th Schedule. It is brought to the notice of this Court that pursuant to the SLP preferred against the said decision, the matter was remanded to this Court and the same is pending. It is also stated that the remand is only on a limited ground of discrimination between the Asianet and ‘DTH’, another service provider, which is in no way, connected with the point decided as to the validity of the statute. 20. Various ‘items heads’ which are reckonable for the purpose of taxation, apart from accommodation charges, had come up for consideration before this Court on different occasions, With regard to ‘Laundry charges’, it was held by a learned Judge of this Court in Kovalam Ashok Beach Resort Hotel vs Sales Tax Officer (Reserve) and another [(2006) 14 KTR 417 (Ker)] that ‘laundry charges’ would attract luxury tax. However, referring to the decision of the Karnataka High Court in Plem Hotels vs. State of Karnataka [129 STC 373], it was contended in Casino Hotel vs. State of Kerala. [(2007) 15 KTR 485 (Ker.)] that no liability could be fixed upon the petitioner, particularly with regard to the charges collected for Ayurvedic treatment, Laundry services and for Boating arranged by the Hotel. The learned Judge observed that the decision of the Karnataka High Court in Plem hotels vs. State of Karnataka [129 STC 373] could not be followed, because the provisions of both the statutes were not similar, It was observed that, under the Kerala Act, tax is payable for rent and charges collected for every service and amenity provided in a Hotel except on charges for food, drink and telephone charges, while the Karnataka Act enumerated the specific items of services that actually attract luxury tax. Accordingly, decision was rendered re-confirming the earlier decision in Kovalam Ashok Beach Resort Hotel vs. Sales Tax Officer (Reserve) and another {(2006) 14 KTR 417 (Ker)] and as per the said decision in Casio Hotel’s case, the charges collected in respect of ‘Ayurvedic treatment’, Laundry services’ and for Boating arranged by the Hotel were held as eligible to luxury tax. It was made clear by the Court that “luxury” provided in a Hotel included every amenity and service provided in the Hotel that r comfort, whether charges along with rent or not and that the service provided in a Hotel included the service arranged by the Hotel outside the Hotel premises as well. 21. It was made clear by the Court that “luxury” provided in a Hotel included every amenity and service provided in the Hotel that r comfort, whether charges along with rent or not and that the service provided in a Hotel included the service arranged by the Hotel outside the Hotel premises as well. 21. The learned Sr. Counsel submits that the actual scope and intend of the statute is discernible from the ‘proviso’ added to Section 4(2) of the Kerala Tax on Luxuries Act, 1976, which was brought into effect from 01.04.2007, Section 4(2) with the said proviso reads as follows: “[(2) Luxury tax shall be levied and collected.” a. In respect of a hotel, for charges of accommodation for residence and other amenities and services provided in the hotel, excluding food and liquor. i. At the rate of ten per cent per room for hotels, in respect of room where the gross charges of accommodation for residence and other amenities and services provided is above rupees two hundred upto five hundred per day; ii. At the rate of fifteen per cent for hotels in respect of room where the gross charges of accommodation for residence and other amenities and services provide is above rupees five hundred per day) Provided that no luxury tax shall be payable, for such charges received in respect of service rendered outside the hotel premises, such as vehicle hire, boat hire and trekking. Provided further that the hire charges received in respect of house boats owned or possessed with right to use it by the hotels shall be liable to tax under the Act; It is stated that the above newly added proviso clearly excludes the charges received in respect of service rendered outside the Hotel premises; such as Vehicle hire, Boat hire and Trekking and that this is clarificatory in nature. The provision being clarificatory, it has to be made applicable right from the beginning, in view of the law declared by the Apex Court in AIR 1985 SC 582 (S. Sundaram Pillai vs. V.K. Pattabiraman) and that the liability imposed upon the petitioners as per the revised assessment orders are liable to be intercepted. 22. As pointed out earlier, the Kerala Tax on Luxuries Act, 1976, right from the date of inception, though it fit to include everything within the tax net, except the charges for food, drinks and telephone charges. 22. As pointed out earlier, the Kerala Tax on Luxuries Act, 1976, right from the date of inception, though it fit to include everything within the tax net, except the charges for food, drinks and telephone charges. This is a vital distinction from the position available under the Karnataka statute, wherein the instances of luxuries are specified, which are taxable under the said statute. 23. ‘Luxury’ is a relative concept and what is ‘luxury is to be defined by the concerned State, based on its legislative wisdom and as a matter of policy. So long as the power of the State to tax the luxury under Entry 62 of State List stands, it is for the State to prescribe the various instances and the extent/measure of taxation. True, by virtue of the Finance Act, 2007, a ‘proviso’ was added to Section 4(2), whereby something more was mentioned to be taken outside its purview, (i.e. over and above the exemption already given in respect of charges for food, drinks and telephone), i.e., the charges received in respect of the service rendered outside the Hotel premises, such as Vehicle hire. Boat hire and Trekking were newly added. The extent of exclusion was made clear, with specific reference to the items such as ‘Vehicle hire, boat hire and Trekking’. The circumstances under which such an exclusion was provided as per the Finance Act, 2007 are within the legislative competence and wisdom of the law making authorities. This exclusion cannot but be regarded as ‘declaratory’ in nature, to be given effect to only form the date from which, the enabling provision was brought into the statute book, i.e. w.e.f. 01.04.2007 and never before. 24. There is a case for the petitioners that the revised assessment orders passed, invoking the power under Section 6(5) of the Kerala Tax on Luxuries Act, attempting to tax the allegedly ‘escaped turnover’ is not correct or proper. It is contended that the said provision was brought into force only on 28.08.2005, as borne by Ext.P13 (in W.P.(C) No.33681 of 2006) which hence could not have been pressed into service in respect of the assessment orders prior to the said date. It is contended that the said provision was brought into force only on 28.08.2005, as borne by Ext.P13 (in W.P.(C) No.33681 of 2006) which hence could not have been pressed into service in respect of the assessment orders prior to the said date. It is also stated that the entire turnover was very much reflected in the returns and Books of accounts examined by the assessing authority, who passed the original assessment orders reckoning only 1/10th of the total of such disputed turnover. Merely by changing the officer concerned or change of opinion, the said course could not have been titled in any manner, by subjecting the entire turnover to be taxed, by subjecting the entire turnover to be taxed, in view of the law declared by the Apex Court in Binami Industries Limited v. Assistant Commissioner of Commercial taxes (2007) 6 VST 783 (SC). Sub-section (5) of Section 6 of the Act reads as follows: “SECTION 6 (5) “(5) Where for any reason, the whole or any part of the business of a hotel/house boat has escaped assessment to tax in any year or ha been under-assessed at a lower rate that the rate at which it is assessable or any deduction has been wrongly made therefrom, the assessing authority may at any time within a period of five years from the expiry of the year to which the tax relates, proceed to determine to the best of its judgment, the turnover which has escaped assessment to tax or has been underassessed or has been assessed at a lower rate than the rate at which it is assessable and assess the tax payable on such turnover, after issuing a notice to the proprietor and after making such enquiry a it may deem fit.” The above provision makes it clear that when the turnover is escaped, the concerned assessing authority can very well cause the escaped turnover to be reckoned and taxed, so as to protect the Revenue in the manner specified therein, if the earlier order passed by the said authority was defective in this regard. 25. True, the above provision for assessing the ‘escaped turnover’ was incorporated in the Statute boo, as per the Act 41 of 2005, which was published in the Gazette dated 28.08.2005 as borne by Ext.P13. 25. True, the above provision for assessing the ‘escaped turnover’ was incorporated in the Statute boo, as per the Act 41 of 2005, which was published in the Gazette dated 28.08.2005 as borne by Ext.P13. But, it has to be borne in mind that the original assessment order 9Ext.P1 in W.P.(C) No.33681 of 2006) was passed only on 30.10.2005, ie., after coming into force of Ext.P13 amendment on 28.08.2005. It is also admitted by the petitioner in W.P.(C) NO.33681 of 2006 that only 1/10th of the charges for such services (such as (a) to (f) in paragraph 1 of the above writ petition) were reckoned for the purpose of taxation, leaving 9/10th untoucned, It was on realizing the said mistake in having left over 9/10th as above, that the earlier order was necessitated to be revised, so as to assess the escaped turnover by proposing reised assessment, which was finalized accordingly. Same is the position with regard to the assessment year 2004-05 as involved in W.P.(C) No.18545 of 2007, (preferred by the very same petitioner in W.P.(C) 33681 of 2006), whereby some other reckonable charges, which happeneded to be left out earlier, were also brought in, to be taxed. This being the position, the contention raised by the petitioners referring to the date of incorporation of sub-section(5) to Section (6) does not help the petitioners in any manner. 26. With regard to the contention that Section 6(5) brought into force only w.e.f. 28.08.2005 cannot have any retrospective operation and the judicial precedents cited, it is true that ‘No fault liability’ compensation payable under Section 140 of the Motor Vehicles Act, 1988 brought into force from 01.07.1989 was substantially modified, providing a much higher extent, as per the Act 54 of 1994, w.e.f. 14./11.1994. The scope of the said amendment, particularly as to whether it was retrospective in operation or not had come up for consideration before the Apex Court in State of Punjab and others vs. Bhajan Kaur and others [(2008) 12 SCC 112 = 2008 (2) KLT 628]. Observing that it was a ‘substantive provision’ and explaining the colour and characteristics as to the scope of such amendment, it was held that the said provision was never to be of retrospective operation. Somewhat similar verdict had been passed by a Full Bench of this Court as well as reported in 1996(2) KLT 695 (FB) (Oriental Insurance Co. Observing that it was a ‘substantive provision’ and explaining the colour and characteristics as to the scope of such amendment, it was held that the said provision was never to be of retrospective operation. Somewhat similar verdict had been passed by a Full Bench of this Court as well as reported in 1996(2) KLT 695 (FB) (Oriental Insurance Co. Ltd. vs. Sheela Ratnan). A Division Bench of this Court in procurator, R.C. Diocese, Calicut vs. State of Kerala (2003 (1) KLT 618] has held that the amendment with regard to the Court Fee payable in Land Acquisition cases under the Kerala Court Fees and Suits Valuation Act, 1959 is having only prospective effect. It is also true, that by virtue of Section 6 of the General Clause Act, there cannot be any application of the provision prior to its enactment, unless otherwise provided. But considering the scope of the above verdicts with reference to Section 6(5) of the Kerala Tax on Luxuries Act, the provision for assessment of ‘escaped turnover’ itself suggests the assessment of the turnover which “escaped” from imposition of tax liability. As mentioned herein before, the original orders were passed by the assessing authority only much after the incorporation of the above provision into the statute book vide Act 41 of 2005, notified as per Ext.P13 Notification dated 28.08.2005. In other words, at the time of passing the original order itself, the amendment had taken effect and a such, if at all any portion of the reckonable turnover happened to be omitted or escaped the assessment, it is possible for the assessing officer to have the ‘escaped turnover’ to be assessed by invoking the power under Section 6(5), as aforesaid. It was accordingly, that notice was issued proposing the revised assessment, in conformity with the statutory requirements, finally leading to the revised assessment orders. This Court finds that the contention raised by the petitioners referring to the absence of retrospectivity to subsection (5) of Section 6, does not hold any water at all; nor is it relevant to the case in hand, since both the original as well as the revised assessment orders have been passed only after the amendment, i.e. after 28.08.2005. 27. This Court finds that the contention raised by the petitioners referring to the absence of retrospectivity to subsection (5) of Section 6, does not hold any water at all; nor is it relevant to the case in hand, since both the original as well as the revised assessment orders have been passed only after the amendment, i.e. after 28.08.2005. 27. With regard to the contention that ‘change of opinion’ cannot be a reason for passing revised assessment order as held in (2007) 6 VST 783 (SC) (CITED SUPRA), it has to be noted that, this is not a case of mere change of opinion of one officer, by that of another. Wxt.P1 in W.P.(C) 33681 of 2006, which is the original assessment order dated 30.10.2005 has been revised by the very same officer (by name Smt. V.O. Dalsy) by passing the revised assessment order dated 18.09.2006. It is also relevant to note that reason stated therein, in the opening paragraphs which read as follows: “The luxury tax assessment for 2000-01 was finalized as 30.10.2005 by fixing a total and taxable accommodation charges of Rs.12,42,006. The assessment was completed and the rent charges was fixed mainly on the contention raised by the dealer that the other amenities were provided by “outside service providers” that the payments were made to them that the hotel is getting only commission etc. The finding was based on the argument raised by the dealer that they were not raising direct bills that the bills were raised in lieu of cash receipts raised by the outside service providers. Nevertheless, the fact is that the other amenities finds a place in the books of accounts of the dealer that it reflects in trading and profit and loss accounts of the dealers. That means the other amenities collected by the dealer is the turnover of the dealers for the year. Thus it was evident that the other amenities collected Rs.75,16,788 was escaped from assessment of the dealer during the year. That means the other amenities collected by the dealer is the turnover of the dealers for the year. Thus it was evident that the other amenities collected Rs.75,16,788 was escaped from assessment of the dealer during the year. It is therefore proposed to re-open assessment for the year 2000-01 u/s.6(5) of the KTL Act, 1976 in order to make good the escaped charges to assessment as under.” It is seen from the impugned proceedings that the bills in respect of the disputed heads were not being effected by outside agencies as contended by the petitioners, but they were being issued by the petitioners themselves and all such amounts have been included in the books of accounts of the dealer, reflecting its trading and profit and loss accounts, thus constituting the ‘turnover of the dealer. It was taking note of the factual position as above that the ‘escaped turnover’ was sought to be assessed, invoking the power under section 6(5), leading to the revised assessment orders passed accordingly. 28. Similarly, in W.P.(C) No.18545 of 2007 also, the original order was passed in respect of the assessment year 2004-05 by the assessing authority by name Smt. V.O.Daisy on 17.03.2007 and on noting the escaped turnover, the very same officer took necessary steps to effect the escaped turnover to be assessed by issuing notice, finally leading to Ext.P7 revised assessment order dated 12.05.2008. This being the position, the contention of the petitioner that, it is by virtue of the change of opinion of some officer, in place of another, that the revised assessment orders have been passed, is devoid of any merit or bonafides. 29. There is a case for the petitioners, at least for the petitioner in W.P.(C) No.33681 of 2006, that no proper opportunity of hearing was given before passing the revised assessment order. It is stated that, in response to Ext.P2 notice proposing to revise the assessment for the year 2000-2001 and similar notices for the other assessment years, Ext.P3 and other similar objections were preferred on 30.08.2006 and that it was supplemented by Ext.P4 additional objections dated 22.09.2006. It is stated that when the proceedings were finalized by passing Ext.P5 to P8 orders, the petitioner was not personally heard and hence the impugned orders are liable to be interfered. It is stated that when the proceedings were finalized by passing Ext.P5 to P8 orders, the petitioner was not personally heard and hence the impugned orders are liable to be interfered. Reliance is sought to be placed on the decision rendered by this Court in Sunny vs. STO (W.P.(C) 3573/2004) stating that the assessing authority ought to have granted an opportunity of personal hearing even without any request. It is pointed out that Ext.P4 letter had reached the assessing authority before releasing the order from the office of the assessing authority and that the order was served to the petitioner only on 19.10.2006. 30. The above plea, with reference to the alleged violation of principles of natural justice, has to be examined with reference to the actual facts and figures and also as to the scope of the contentions raised. There is no abstract principle, particularly with regard to the personal hearing to be given so as to constitute violation of infringement of principles of natural justice, which may very from case to case. Statute does not contemplate any such hearing and the judicial pronouncements are more to the effect that such an opportunity needs to given only if it is asked for. Ext.P3 is the objection submitted in response to Ext.P2, which does not seek for any such opportunity. As per Ext.P2 notice, the petitioner was required to submit the Statement of objections, if any, within seven days of the receipt of the notice, asking the petitioner to appear for personal hearing on 03.08.2006. Ext.P3 objection 30.08.2006. Even though the said explanation itself was belated the same was considered by the authority while passing Exts.P5 to P8 orders on 18.09.2006 Ext.P4 additional objections, seeking for an opportunity of personal hearing, admittedly is dated 22.09.2006, i.e., much after Exts.P5 to P8 orders. How Ext.P4 was served upon the assessing authority is not stated anywhere in the writ petition and no proof is produced before this Court to infer that the revised assessment orders were passed after the receipt of Ext.P4. 31. The more important question is as to the ‘prejudice’ if any, caused to the petitioner. There is no case for the petitioner that any particular point raised by the petitioner in the statement of objections has been omitted to be considered by the assessing authority while passing Ext.P5 to P8 revised assessment orders. 31. The more important question is as to the ‘prejudice’ if any, caused to the petitioner. There is no case for the petitioner that any particular point raised by the petitioner in the statement of objections has been omitted to be considered by the assessing authority while passing Ext.P5 to P8 revised assessment orders. There is no dispute with regard to the facts and figures, especially as to the amounts collected under different ‘Heads’ or as to the figures reflected from the Books of accounts. The only question to be considered was whether the charges collected in respect of the various Heads, such as Ayurveda treatment, Laundry charges, Boating etc should have been included as part of the turnover for fixing the tax liability and the dispute was never on the quantum of turnover,. These aspects have been considered by the assessing authority, who passed Exts. P5 to P8 revised assessment orders on 18.09.2006, i.e., much prior to the date of Ext.P4. This being the position, the challenge raised by the petitioner, referring to the alleged violation of principles of natural justice is without any basis. 32. The contention raised by the petitioners that the view expressed by the Apex Court in Express Hotels Pvt. Ltd. vs. State of Gujarat [(1989) 74 STC 157 (SC)] is no longer good law in view of the decision in Godfrey Phillips India Ltd. And another v. State of U.P. and others [AIR 2005 SUPREME COURT 1103 [(2005) 13 KTR 89 (SC)] and in view of introduction of additional entries in List I is rather misconceived in relation to the issue involved. The additional entry in List I as well as its cope and extent has already been discussed by this Court in the earlier paragraphs, which cannot support the case of the petitioners in any manner. Coming to the decision of the Apex Court in Godfrey’s case (cited supra), the crucial question considered and decided therein was whether any commodity could be taxed with reference to the power to legislate on Entry 62 of List II of the 7th Schedule. It was made clear by the Apex Court in unequivocal terms, that it is the ‘activity that is liable to be taxed and not the commodity, considering it as a ‘luxury’ with reference to Entry 62 of List II. This finding does not come to the rescue of the petitioner in any manner. It was made clear by the Apex Court in unequivocal terms, that it is the ‘activity that is liable to be taxed and not the commodity, considering it as a ‘luxury’ with reference to Entry 62 of List II. This finding does not come to the rescue of the petitioner in any manner. Similarly there is no merit in the contention of the petitioners that ‘Boat’ being a movable item/commodity, there could not have been any tax on the aspect of luxury, in view of the ruling of the Apex Court in Godfrey’s case (cited supra). As a matter of fact, there cannot be any dispute tht ‘Boat’ is a movable commodity, but it is not the ‘Boat’ that is being given as luxury to the prospective customers, but the service/amenity to be provided therein, to be reckoned as an amenity provided in the Hotel, till it was taken outside the charging provision by virtue of the newly added proviso to Section 4(2) introduced as per the Finance Act, 2007. 33. There is a plea of limitation for the petitioner in W.P.(C) No.33681 of 2006; particularly with regard to the assessment year 2000-01. The learned Government with regard to the assessment impugned order has been passed well within the prescribed time and that the plea of limitation is quite wrong and unfounded in view of the ‘second proviso’ to Section 6(4) and also in view of the specific terms of sub-section (5) to Section 6. By virtue of the second proviso to Section 6(4), all the assessments relating to the years upto and including the year 2001-02, pending as on 31.03.2006, were to be completed on or before 31.03.2007. The assessments in respect of the year 2000-01 (i.e. Upto and including 2001-02) was finalized only as per Ext.P1 order dated 30.10.2005. Ext.P2 revised assessment notice was issued on 20.06.2006. The above ‘proviso’ was brought into force as per the Kerala Finance Act, 2006, granting time for completing the assessments, even in cases pending as on 31.03.2006, to be completed on or before 31.03.2007. That apart, the wordings in sub-section (5) of Section 76 are also very much specific, that the time limit for invoking the power to have the revised assessment is five years. This being the position, the plea of limitation is not successfully established and hence is rejected. 34. That apart, the wordings in sub-section (5) of Section 76 are also very much specific, that the time limit for invoking the power to have the revised assessment is five years. This being the position, the plea of limitation is not successfully established and hence is rejected. 34. Lastly, coming to the question of ‘interest’ Payable, the learned Sr. Counsel submits that the liability to satisfy the interest is not correct or proper; more so in view of the ‘explanation’ given in the Act 41 of 2005, whereby sub-section (5) to Section 6 was incorporated as per Ext.P13 Notification dated 28.08.2005. The said ‘explanation’ reads as follows: “Explanation: The liability to pay tax or other amount shall arise only from the date specified in the revised notice.” That apart, when the liability to pay luxury tax in respect of the Ayurvedic treatment, Laundry charges, Boating etc, was upheld in Casino Hotel vs. State of Kerala ((2007) 15 KTR 485 (Ker.), it was made clear that interest can be demanded only for the actual period of default i.e., after the expiry of the date provided for payment under a notice of demand served along with the assessment orders. The above declaration with reference to Section 10 of the KTL Act, makes it clear that there cannot be any liability for interest prior to serving of assessment order and demand notice; more so when the liability now mulcted upon the petitioner is pursuant to re-fixation of the same, invoking the power under section 6(5). This Court finds that the petitioner is also entitled to get similar relief as already granted by this Court, in (2007) 15 KTR 485 (Ker.), with regard to payment of interest. It is ordered accordingly. 35. In the above circumstance, this Court finds that all these writ petitions challenging the validity of the Kerala Tax on Luxuries Act, 1976 and those challenging the revised assessment orders passed by the concerned authority, are devoid of any merit. Interference is declined and all the writ petitions are dismissed accordingly. However, it is made clear that it shall be for the assessing officer to revise the demand of interest for the actual period of default and recover interest only for such period in terms of (2007) 15 KTR 485 (Ker.).