High Court Of Himachal Pradesh
H.P. Tourism Development Corporation vs. Union Of India & Ors.
Sections Art. 2(6)(c), EXP 3, 4, 5
Asst. Year 1988-89, 1989-90, 1990-91, 1991-92, 1992-93, 1993-94
D. Raju, C.J. & Lokeshwar Singh Panta, J.
CWP Nos. 221 of 1993, 310 of 1997 & 242 of 1998
28th December, 1998
Counsel Appeared
M.M. Khanna, for the Petitioners : Ms.Abhilasha Kumari, Ashwani Pathak & Inder Singh, for the Respondents
JUDGMENT
D. RAJU, C.J. :
These three writ petitions have been filed by the same writ petitioner, the H.P. Tourism Development Corporation, hereinafter referred to as (the petitioner-corporation) and having regard to the overlapping nature of the questions involved for consideration and the fact that common submissions have been made by counsel on either side, these are dealt with together.
2. So far as C.W.P. No. 221 of 1993 is concerned, the same has been filed seeking for an appropriate writ and declaration that s. 5 of the Expenditure-tax Act, 1987 Central Act 35 of 1987, hereinafter referred to as “the Act”, which defines the words “chargeable expenditure” beyond the scope of s. 3, the charging section in so far as it attempts to bring into its ambit the expenses and the rooms which otherwise fall beyond the purview and applicability of the Act to be illegal, arbitrary, unjust and beyond the scope of the Act and any assessment orders passed or proceeding initiated thereunder are void ab initio. The further relief sought for is a declaration that s. 5 of the Act is contrary to s. 3 which makes the Act applicable in circumstances that “at the time of incurring such expenditure” the room charges for any unit were Rs. 400 or more per day per individual and the provisions of s. 3 being related to the entire actual charge of the room and the expenditure incurred thereon and not to the entire expenses for the entire receipts of the hotel. The orders of assessment passed and filed in this proceeding as annexures-P-2 to P-5 pertaining to the years 1988-89, 1989-90, 1990-91 and 1991-92 are opposed to the provisions of the Act and, therefore, the levy is without the authority of law and violative of Art. 265 of the Constitution of India besides being violative of Art. 19(1)(g) and 304(1) of the Constitution.
So far as C.W.P. No. 310 of 1997 is concerned, the same type and nature of relief has been sought for with particular reference to the order of assessment passed for the year 1992-93 filed as annexure-P-2 in this writ petition. So far as C.W.P. No. 242 of 1998 is concerned, once again identical nature of relief has been sought for in this writ petition also with particular reference to the order of assessment passed in respect of the year 1993-94 filed in this writ petition as annexure-P-1.
The relevant details of facts required to be noticed to appreciate the contentions raised in these writ petitions may be set out before undertaking adjudication of the points raised. The petitioner-corporation is said to be a company incorporated under the Indian Companies Act and the majority of the shares of the company are said to be ownedby the Government of Himachal Pradesh, and, therefore, it is a Government company. The petitioner is stated to be running and managing a fleet of hotels all over the State of Himachal Pradesh and that each unit of hotel is also said to be separately registered with the Commissioner of Tourism, Himachal Pradesh, who is also said to be the prescribed authority for the fixation of room charges in the case of hotels in Himachal Pradesh including the petitioner-corporation and that the room charges levied and collected by the petitioner-corporation in respect of their hotels are said to be fixed by the Commissioner of Tourism in exercise of the powers vested in him under s. 9 of the Himachal Pradesh Registration of Hotels and Travel Agents Act, 1969, and the rules framed thereunder. It is the further case of the petitioner-corporation vary from a meagre sum of Rs. 50 per room to Rs. 1,500 per day at the relevant point of time as per the list approved by the Commissioner of Tourism. The room charges are said to be so fixed and are said to be dependent not only upon the site and situation of the hotel but also the facilities provided therein and that the majority of the hotels of the petitioner-corporation are such wherein room charges of a particular unit of residence are much below the rates fixed for the levy of expenditure-tax under the Act, that is, much below Rs. 400 per day per person. Admittedly, there are certain hotels of the petitioner-corporation wherein only a few rooms or units of residence and in some cases only a single room fell within the category of units of residence on which the Act becomes applicable for the reasons that it is more than Rs. 400 per person per day. The petitioner-corporation appears to have filed the returns in respect of the rooms in a particular hotel which fell within the purview of s. 3 of the Act for the years 1988-89 to 1991-92 and the assessments in respect of those returns were said to have been finalised on 3rd Dec., 1992, under the orders filed as annexures-P-2 to P-5. It is stated further for the petitioner-corporation that though the return filed for the year 1988-89 has been accepted so far as the one in respect of the year 1989-90 as against the return, the chargeable expenditure has been determined for the purpose of levy at Rs. 87,19,355 as against the reported chargeable expenditure of Rs. 35,84,680. So far as the year 1990-91 is concerned, as against the reported chargeable expenditure of Rs. 47,57,489, the same appears to have been determined at Rs. 1,86,53,075. It is stated in the petition for the petitioner-corporation that the assessing authority, the third respondent, while formulating the question for consideration as to whether the changes in room rent during a particular year could affect the liability for expenditure-tax or whether the liability is to be ascertained from day to day or from year to year could decide the liability under the Act and whether the room rent of Rs. 400 per person per day is to mean Rs. 400 per bed per day or whether the rent fixed notionally for accommodation is to be the deciding factor or whether the rent actually charged for a particular room is the deciding factor. On the said issue, in respect of the assessment years which are the subject-matter of challenge in C.W.P. No. 221 of 1993, the assessing authority appears to have held that the term “at the time of incurring of such expenditure” related to the period of assessment and would stretch the liability for the entire financial year from the date of such liability and, therefore, to tax on the entire receipts of the hotel under the Act. The stand taken for the petitioner-corporation that the term “at the time of incurring of such expenditure” occurring in s. 3 of the Act, meant on a particular day of the year and, therefore, the liability could be only with reference to the tariff so approved and charged on each particular day of the year and if the tariff is below Rs. 400, the expenditure incurred on that date would not be covered under the Act, came to be rejected by the assessing authority, So far as the assessment for the year 1992-93 is concerned, the criteria would be different in that by virtue of the Amendment Act, 1992, the applicability of the Act was confined to the rooms/units for which the tariff is Rs. 1,200 and above person per day w.e.f. 1st June, 1992. The stand of the petitioner-corporation is that on and from 1st June, 1992, the room/unit for which tariff was below Rs. 1,200 per person per day despite the fact that prior to the said date by virtue of the tariff limit being Rs. 400 per person per day and the chargeable expenditure was earlier subjected to tax, cannot be subjected to assessment and it is only where the room charges are more than Rs. 1,200 per day per person that could be made the subject of levy. So far as C.W.P. No. 242 of 1998 is concerned, similar and identical issues have been raised challenging the assessment made in respect of the year 1993-94.
As against the orders of assessment, noticed above, for the respective years, the petitioner-corporation pursued the matter on appeal before the appellate authority and the appeals also were rejected confirming the orders of assessment driving the petitioners to the necessity of filing the above writ petitions.
Mr. M.M. Khanna, the learned counsel appearing for the petitioner-corporation, did not pursue or project the ground raised in the writ petitions regarding the constitutional validity of s. 5 of the Act. On the other hand, the learned counsel confined his submissions to the applicability of the Act, relative scope and purport of ss. 3 and 5 of the Act and the illegality involved in interpreting those provisions in a manner, which, according to the learned counsel for the petitioners, even altered the nature and character of the levy to make it an unauthorised and illegal levy thereby constituting violation of Art. 265 of the Constitution of India. In elaborating this aspect of the submissions made, the learned counsel submitted that the levy under the Act is on a person incurring expenditure on a hotel and not on the hotel or the gross receipts of the hotel, inclusive of the sale of food articles and other eatables to even persons, who were either casual visitors or/and who do not even stay in the hotel by availing lodging facility or occupying any room. The further grievance of the petitioners is highlighted by reference to the nature of business activities carried on by stating that in some of the hotels managed and run by the petitioner- corporation, there are or may be one or a negligible few number of rooms in respect of which the charges may be Rs. 400 or more per person per day or Rs. 1,200 per person per day w.e.f. 1st June, 1992, besides the existence of dormitories and other rooms, charges in respect of which will be far below the minimum stipulated room charges as above even for the application of the Act and despite all these without objectively considering the liability strictly in terms of the provisions of the Act by confirming the levy and assessment to the chargeable expenditure incurred in respect of such rooms only the respondent-authorities have chosen to levy the tax under the Act on the entire receipts for the only reason that for one or two rooms in the hotels concerned of the petitioner-corporation, the room charges are of the rates or over and above those stipulated in s. 3(1) of the Act. Learned counsel further reiterated the stand by asserting that inasmuch as the accounts maintained by an institution like the petitioner- corporation, which is a State undertaking would meticulously disclose the number of persons, who occupied a residential accommodation of which the room charges are above the rates stipulated in s. 3(1) of the Act including the incidental expenditure for food, beverages and all other items spent by such resident of a room, there was no justification in law to treat the entire receipts in the hotel as chargeable expenditure, which receipts as per records maintained in the ordinary course of business, which is subjected to periodical audit relate to the expenses incurred by casual visitors, who never occupied any room and who could not be said to be resident customers and receipts through the other persons, who occupied the rooms, which were far below the rate stipulated in s. 3(1) of the Act. Learned counsel for the petitioners vehemently also contended even in respect of the rooms in the hotel, wherein the rooms charges for any unit of residential accommodation at the time of incurring such expenditure, are above the stipulated rate inasmuch as the provisions stipulated the standard of rate to be per day per individual, even in cases where the rooms if occupied by more than one, the charges for the unit of residential accommodation is to be divided per head and if in that process a room has the fixed charges of either Rs. 400 for the relevant period or Rs. 1,200 for the period subsequent to 1st July, 1992, the same has to be divided among the number of occupants when charged therefor and if after such division, it is found to be less than the amount stipulated in s. 3 (1) per day per individual, the expenditure incurred in respect of such rooms by such persons also cannot be brought to tax. In substance, the submission of the learned counsel for the petitioner appears to be that it is not the rate fixed for the room as room charges for the notified capacity of the room that matters but it is to be also further divided among the number of persons, who occupied the room at a particular point of time to determine the applicability or otherwise of the Act to assess the chargeable expenditure for the purpose of levy of tax. On the above submission, learned counsel for the petitioners submitted that the impugned orders of assessment as also the orders passed by the appellate authorities are liable to be set aside and the matter considered afresh and the liability of the petitioner-corporation re-determined in accordance with law.
In support of the submissions made by the learned counsel for the petitioners, reliance has been placed on the decision in Federation of Hotel and Restaurant Association of India vs. Union of India (1989) 77 CTR (SC) 141 : (1989) 178 ITR 97 (SC) : TC 71R.422 and a decision of the Tribunal, Cochin Bench in ITH & Co. vs. Asstt. CIT (1993) 45 ITD 35 (Coch).
In order to meet the preliminary objection regarding the maintainability of the writ petitions raised by the learned counsel for the IT Department, the learned counsel for the petitioners also relied upon the decisions Hot Millions vs. Union Territory, Chandigarh (1986) 62 STC 342 (P&H), Thanthi Trust vs. Asstt. CIT (1995) 213 ITR 626 (Mad) : TC S23.2421 and L. Hirday Narain vs. ITO (1970) 78 ITR 26 (SC) : TC 53R.139. Per contra, Mr. Inder Singh, the learned counsel appearing for respondents Nos. 2 and 3 while reiterating the stand taken in the reply filed, contended that the writ petitions as such are not maintainable in view of the effective alternative remedies which the petitioners have under the Act. On the merits of the claim regarding the applicability of the Act and the determination of the chargeable expenditure and the assessment and levy made in these cases, it was contended that the interpretation sought to be placed by the petitioners on the relevant provisions of the Act are not tenable and correct and proceed upon an erroneous understanding of the same. According to the respondents, the chargeable expenditure of the guest of the hotel would be the receipt of the hotel and what is brought to tax is thexpenditure incurred in the hotel by the customers and the guests and this would be the same as the gross receipts of the hotel. It was also contended that the manner of determination adopted and the impugned levy is quite in accordance with law and there is no violation of any of the provisions of the Constitution including Art. 265 of the Constitution in India. The provisions of s. 5 of the Act are not said to be contrary to the provisions contained in s. 3. In substance, the submission on behalf of the respondents is that even if any one room in a hotel where the room charges of any unit of the residential accommodation at the time of incurring such expenditure are Rs. 400 or more per day per individual or Rs. 1,200 or more per day per individual in relation to per respective period of assessment, the entire expenditure incurred by any and every one who comes to the hotel and thereby the total receipts in the said hotel will be subject to levy under the Act. Learned counsel while traversing the stand taken for the petitioner-corporation submitted that it is the room charges fixed for any unit of residential accommodation that is the criteria and the same cannot be further divided among the number of occupants of the room at a particular point of time in adjudging the applicability or otherwise of the provisions of the Act to a particular hotel. In support of the submission, learned counsel also relied upon the decisions in Federation of Hotel and Restaurant Association of India vs. Union of India (supra), Hotel Mansarovar vs. Union of India (1995) 123 CTR (AP) 576 : (1995) 213 ITR 668 (AP) : TC 71R.450 and C.A. Abraham vs. ITO (1961) 41 ITR 425 (SC) : TC 68R.350.
Learned counsel for the first respondent merely adopted the submissions of learned counsel for respondents Nos. 2 and 3.
Before adverting to the contentions raised on merits of the claims, it would be appropriate to deal with the preliminary objection raised with reference to the maintainability of the writ petitions. Mr. Inder Singh, learned counsel for respondents Nos. 2 and 3, while relying upon ss. 23 and 24 of the Act, submitted that the petitioner- corporation had effective alternative statutory remedy and as long as the constitutional validity of any of the provisions of the Act is not challenged and pursued, there is no justification for the petitioners to invoke the jurisdiction of this Court under Art .226 of the Constitution of India and the writ petitions are liable to be dismissed.
On a careful consideration of the judgments relied upon by the learned counsel appearing on either side in this regard, we are of the view that there is no justification to dismiss the writ petitions on this ground. Apart from the fact that the earliest of the writ petitions has been filed and entertained in the year 1993 and kept pending all along with the other writ petitions subsequently filed, it may not be justifiable to dismiss the writ petitions as not maintainable. Even that apart, we find that the issues raised in these writ petitions are matters of construction of statutory provisions which go to the root of the jurisdiction of the third respondent and, consequently, when the particular levy is being challenged as an unauthorised one and, consequently, violative of Art. 265 of the Constitution of India, it may not be appropriate to reject the writ petitions, when there is no invariable rule of limitation as such on the powers of this Court so as to debar a writ merely on the ground of availability of an alternative remedy or the failure on the part of the petitioners to exhaust the same.
The Expenditure-tax Act, 1987, was enacted to provide for the levy of a tax on expenditure incurred in certain hotels or restaurants and for matters connected therewith or incidental thereto. Sec. 3 provides that the Act “shall apply in relation to any chargeable expenditure incurred in a hotel wherein the room charges for any unit of residential accommodation at the time of incurring of such expenditure are Rs. 400 or more per day per individual, if it was before 1st June, 1992, and Rs. 1,200 or more per day per individual if it is for the period on and after 1st June, 1992, and where a composite charge is made payable in respect of such unit and food, the provisions also provides the guidelines and principles as to how to determine the room charges for the purpose of the said provision. Sec. 4 enacts that subject to the provisions of the Act “there shall be charged on and from the commencement of the Act, a tax at the relevant rates stipulated therein of the chargeable expenditure incurred in a hotel referred to in cl. (1) of s. 3”. Sec. 5 of the Act provides for the meaning of chargeable expenditure for the purpose of the Act by stipulating that in relation to a hotel referred to in cl. (1) of s. 3, it means any expenditure incurred in, or payments made to, the hotel “in connection with the provision of any accommodation, residential or otherwise or food or drink by the hotel, whether at the hotel or outside, or by any other person at the hotel or any accommodation in such hotel on hire or lease or any other services at the hotel, either by the hotel or by any other person, by way of beauty parlour, health club, swimming pool or other service”, certain categories ofexpenditure subject to certain riders specified are excluded from the said meaning of chargeable expenditure and it is unnecessary for our purposes to advert to those provisions in detail. The constitutional validity of the Expenditure-tax Act, 1987, came to be challenged before the apex Court and in the decision Federation of Hotel and Restaurant Association of India vs. Union of India (supra), the same has been repelled and rejected by the apex Court.
It is useful to refer to yet another legislative measure enacted by Parliament known as the Hotel Receipts Tax Act,
1980. The said Act was enacted for the purpose of imposing of special tax on gross receipts of certain hotels and s.
3 of the said Act also stipulated that subject to the provisions of sub-s. (2) and sub-s. (3), that Act applied in relation to every hotel wherein the room charges for residential accommodation provided to any person at any time during the previous year are seventy five rupees or more per day per individual. Sec. 5 of the said Act, which is said to be a charging section stipulates that subject to the provisions of the Act “there shall be charged on every person carrying on the business of a hotel in relation to which the Act applied for every assessment year commencing on or after 1st April, 1981, a tax in respect of his chargeable receipts of the previous year at the rates specified therein of such receipts”. As to what constitute chargeable receipts, is specified in s. 6 of the said Act by stating that the chargeable receipts of any previous year of an assessee shall be the total amount of all charges, by whatever name called, received by, or accruing or arising to, the assessee in connection with the provision of residential accommodation, food, drink and other services of any of them including such charges from even persons not provided with such accommodation. The exclusionary clause enacted needs no specific mention. The said provisions makes it further clear that the chargeable receipts shall also include every amount collected by the assessee by way of tax under the said Act, sales-tax entertainment tax and tax on luxury. It is seen that the constitutional validity of this Act has also been challenged before the apex Court and in the decision Elel Hotels and Investments Ltd. vs. Union of India (1989) 77 CTR (SC) 168 : (1989) 178 ITR 140 (SC) : TC 71R.456, the apex Court upheld the same.
Learned counsel for the petitioners placed strong reliance on the decision of the Tribunal, Cochin Bench, (1993)
45 ITD 35 (Coch) (supra), wherein it was held that the expression “any” occurring before the words “chargeable expenditure” in s. 3(1) of the Act should cover all the items to be included therein except those expressly excluded and considered. In the context it would mean that even in case where the room charges for any one unit of the residential accommodation per day per individual does not exceed Rs. 400, the hotel concerned will be outside the net of expenditure tax and to make the Act applicable to a hotel, all the rooms must satisfy the bench mark of minimum rent of Rs.400 or more for any type of accommodation. In substance, the entire submission of learned counsel for the petitioners seem to draw serious inspiration from the submissions made before the Tribunal in that case.
The plea on behalf of the petitioner-corporation as to be mode and manner of computing the room charges for any unit of residential accommodation at the time of incurring of such expenditure, viz., four hundred or one thousand two hundred rupees or more per day per individual, may be taken up for consideration first. The stand taken by learned counsel for the petitioner-corporation is that even in a case when the charges for any unit of residential accommodation is four hundred or one thousand two hundred rupees or above, as the case may be, as per the approved tariff, depending upon the number of persons who occupied and who were charged at a given time or the number of beds permitted to be used, the tariff rates have to be further divided per day per head and only when the same is found to satisfy the minimum bench mark rate stipulated in s. 3(1), the hotel concerned should be considered to answer the description for application of the Act. We are unable to appreciate and accept such a stand. Annexure P-1, which is said to the rate list approved by the Commissioner of Tourism in respect of the various groups of hotels of the petitioner-corporation under the provisions of the Himachal Pradesh Registration of Hotels and Travel Agents Act, 1969, and the rules made thereunder, indicate that the unit is identified with a room and the rate fixed is with reference to the room as a unit, be it single bed, double bed or triple bed, except in cases or dormitories. Consequently, even if a single person occupies any one of such rooms treated as one unit with more than one bed, except in case of dormitories, having regard to the normal and accepted method of charging of such dormitories or rooms in any hotel—it should be taken as a whole and there is no justification to divide the charges or tariff further with the number of beds to find out or decide about the applicability or otherwise of the Act, as envisaged under s. 3(1) of the Act. This is obvious, also for the reason that no two strangers, except in case of dormitories, will or be allowed to share a room and, therefore, the expenditure incurred for room charges from the main or one person who hires the room cannot further be allowed to be divided by the number of persons who really occupied, as claimed for the petitioners in adjudging the applicability of the Act.
The view taken by us as above would also stand confirmed by the scheme underlying s. 3, which only permits division and allocation of charges incurred in a hotel, wherein composite charges are payable in respect of the unit of residential accommodation and food, drinks and other services as well and not otherwise. The definition of room charges in s. 2(10) of the Act will also justify the said construction placed upon s. 3(1) of the Act and, consequently, the contention of learned counsel for the petitioner-corporation has to fail as unsubstantial and shall stand rejected.
So far as the main and larger issue as to whether the provisions of the Act are attracted in cases of expenditure in a hotel, wherein the room charges for any one room are Rs. 400 or Rs. 1,200, as the case may be or more per day per individual or that it is only when the room charges for all and each and every one of the rooms are Rs. 400 or Rs. 1,200, as the case may be or more per day per individual or that it should be with reference to persons occupying the room priced or with a tariff of Rs. 400 or Rs. 1,200, as the case may be, or more per day per individual, learned counsel appearing on either side tried to forcefully advance their stand with reference to the practical difficulties, possibilities of abuse and manipulations to escape liability and defeat the very object of the legislation. In order to effectively decide these claims of parties before us, the impact of ss. 3, 4, 5 and 8 of the Act have to be analysed and considered. Sec. 3 is the primordial provision which would decide the question of applicability or otherwise of the Act. If in terms of the said provisions, the Act has no application to a case, nothing further survives or surfaces itself for consideration, at all. If by virtue of s. 3(1) of the Act, it is held to apply to a given case or situation, the application is “in relation to any chargeable expenditure”. As to what is chargeable expenditure for the purpose of the Act is defined in s. 5 of the Act and once chargeable expenditure is so determined, the levy or charge is imposed thereon by s. 4 of the Act. In view of the scheme underlying those provisions, it may not be correct for the petitioners to contend that s. 3 is the charging section and s. 5 is only a machinery provisions. Sec. 5 is a provision, which provides for the measure of the tax in relation to the chargeable expenditure and the charge is levied under s. 4 of the Act and all such action for levy and collection are rendered possible and permissible only in respect of cases to which the Act is applicable and this applicability of the Act has to be, in turn, decided with particular reference to s. 3(1) of the Act. What is in serious dispute and controversy in these cases between parties is not very much about the determination of the quantum of chargeable expenditure simpliciter for the purposes of levy of the tax, but the very applicability of the Act to a hotel or the extent of such application and for that purpose as to what constitutes chargeable expenditure and the relevant principles applicable for determining the same. The object of the Act as disclosed from the preamble is to provide for the levy of a tax “on expenditure incurred in certain hotels or restaurants”. The charge is of a percentage stipulated from time to time, of the chargeable expenditure incurred in a hotel referred to in s. 3(1) of the Act, and the quantum of chargeable expenditure has to be determined in accordance with s. 5 of the Act. The charge is thus on the expenditure incurred and the object of levy is as also the incidence of the tax falls only upon the person incurring such expenditure. The assessee, for the purposes of the Act, is the “person responsible for collecting the expenditure tax payable under the Act”, and it is not that he is the person on whom the tax is levied. Sec. 7 of the Act only identifies such person to be the person who carries on the business of a hotel where services enumerated in sub-cls. (a) to (d) of cl. (1) of s. 5 are provided or by any other person who provides such class or category of service and renders him liable to collect the expenditure-tax on the chargeable expenditure and pay over to the State and submit periodical returns, as provided therefor. The incidence of the tax is also only on the persons who incur the “chargeable expenditure”, in the class of hotels to which the Act applies.
The main issue on which the parties on either side are at serious logger-heads is the interpretation that has to be placed on s. 3 of the Expenditure-tax Act, 1987, which renders the Act applicable to any chargeable expenditure. Whereas the Department would contend that even if in a hotel any one unit of residential accommodation/a room had a tariff or room charges of Rs. 400 or above or Rs. 1,200 or above per day per individual, as the case may be, for the relevant period, the entire expenditure incurred by every one, who avails of the services provided therein by all those who occupy even an unit of residential accommodation, which has its room charges far less than minimum stipulated rate for the applicability of the Act or even those who avail merely of the other services without availing of any residential accommodation whatsoever in the hotel. The contra stand taken for thassessee which is the petitioner-corporation is that unless all the rooms in a hotel have units of residential accommodation with tariff or room charges of the minimum stipulated rate in s. 3 of the Act, the Act will have no application to such a hotel and the expenditure incurred by a customer therein will not be attracted to tax under the Act, and that even if any one of the unit of residential accommodation has any room charges, which is less than the minimum stipulated in s. 3, the person who carries on the business of such hotel is not obliged to collect the tax in respect of expenditure incurred by a customer in their hotel and the Act as such will not apply to such a hotel or the expenditure incurred therein. Thus, in substance the plea of the Department is that even having any one room in a hotel with a room charges of the minimum stipulated rates a specified in s. 3 would render the expenditure incurred therein by all customers and that the total gross receipts by the hotelier concerned would attract the applicability of the Act; the petitioners’ claim, on the other hand, is that even if any one of the many rooms has a tariff with room charges for any unit of residential accommodation below the minimum rate prescribed in s. 3(1), the Act will have no application to such a hotel or the expenditure incurred by the customers therein.
20. We have carefully considered the submissions of learned counsel appearing on either side, in this connection with particular reference to the object and character of the levy the nature of the charge levied as also its incidence and are of the view that the extreme stands taken by both the parties if accepted would result in not only counter- productive results but defeat the very efficacy of law and render it easily violable besides leading to absurdities in the matter of enforcement of a taxing enactment. The stand taken for the petitioners based on the decision of the Tribunal at Cochin which chose to construe the word “any unit” to mean all units or residential accommodation or rooms in a hotel to be of the minimum room charges specified in s. 3 of the Act, as a condition precedent for the very applicability of the Act to the expenditure incurred by a customer in a hotel. On the other hand, the Department’s stand is on the basis of a construction, which it would commend for our consideration that any unit “shall be construed to mean even one out of many and, therefore, the fact that any one unit of residential accommodation in a hotel has its tariff or room charges at the minimum rate as stipulated in s. 3 of the Act, the entire expenditure incurred by all customers who avail of services in such hotel attracts the applicability of the Act to such hotel and such expenditure incurred therein. The word used in the Act by the legislature must be considered to have been used correctly and exactly and not loosely and inexactly in ascertaining the exact meaning. Mere reference to the ordinary dictionary meaning will be of no use and the construction divorced from the context in which it has been used and the object of the legislation may often lead to injustice, absurdity, contradiction or stultification of the very statutory objective and, consequently, the language must be so modifiedly read as to give effect to all the provisions of the Act. Further, when the language used is possible of bearing more than one construction, an endeavour to place the correct or true meaning must be made having due regard to the consequences resulting, adopting the alternative constructions and the one which results in hardship, serious inconvenience, injustice, absurdity or anomaly or which leads to inconsistency or uncertainty or friction in the very system, which the statute purports to regulate, has to be rejected and the construction, which would avoid such results would always be preferred. The word “any” is found to have a diversity of meaning and employed to indicate “all” or “every” as well as “some” or “one” and its meaning in a given statute depends upon invariably the context of the subject-matter of the statute. The word “any” does not necessarily mean only one, but may have reference to more than one or too many and though it is said to be often synonymous with “either”, “every” or “all”, its generality may be restricted always by the context. If, as contended for the Revenue, the word “any unit” is to be construed as any one out of many, to make the Act so applicable to the entire expenditure incurred by all customers availing of the services provided in a hotel merely for the reason that any one or more than one only of the units of the residential accommodation has as its tariff/room charges of the minimum or more than such minimum as specified in s. 3 of the Act, notwithstanding all other or large majority of the rooms or units or residential accommodation have their tariff/room charges far below such minimum specified in the Act for the applicability of the provisions of the Act, it will not only lead to absurdities but also result in unjust result opposed to the very object of the Act and in a sense even defeating the purpose and aim of the Act, which as held by the Constitutional Bench of the apex Court is said to be to discourage the expenditure, which the legislature considered lavish, affluent and ostentatious with the object of discouraging the people from incurring such expenditure of unproductive or undesirable channels. Except in cases of hotels with star classification, which uniformly have such luxurious rooms and high standard of services rendered therein, it is common knowledge that it is not all hotels, which have any one or more than one room with such fixed minimum or more, of the room charges, as envisaged under s. 3 of the Act could be considered to be of that standard or so lavish or ostentatiouswhich required to be discouraged. The hotel of the petitioner-corporation itself may provide one of the best illustration in this regard and the tariffs approved by the competent statutory authority under the Himachal Pradesh Registration of Hotels and Travel Agent Act, 1969, and the rules framed thereunder would go to show that the large majority of the rooms or the unit of the residential accommodation do not even satisfy the minimum prescribed rate of tariff or room charges to make the provisions of the Act applicable to it and it is only one or two or very negligible number of rooms that alone has such minimum room charges/tariff to make the Act applicable. The construction sought to be placed by the Revenue if countenanced also in our view will virtually abolish and obliterate even the differences underlying the purpose of the Expenditure-tax Act, 1987, and the objects of the Hotel Receipts Act, 1980.
For all the reasons, we are unable to persuade ourselves to agree with the extreme stand taken for the Revenue in these cases. Similarly, the other extreme stand taken for the petitioners or for that matter, the assessee will equally in our view result in absurd consequences and make the law easily violable or capable of violation by a mere manipulation of the person otherwise rendered answerable to the State for merely recovering the levy and remitting the same, though from the consumers incurring such expenditure in their respective hotels, by even a star category of hotel having one or two or negligible few number of rooms being fixed with tariff or room charges for unit of residential accommodation below the minimum prescribed rate envisaged in s. 3 of the Act. It could be that the tax sought to be imposed under the Act could be easily evaded, defeating the very object of the legislation despite the proven fact that the hotel of such class or category has not only its rooms with tariff/charges over and above the minimum specified in s. 3 of the Act but all and every one of the services rendered therein are also not only luxurious but the expenditure incurred therein are lavish, affluent and ostentatious. Such construction, which will help a tax law to be so easily flouted with impunity, could not also commend itself for our acceptance.
Having regard to the serious and basic infirmities involved, in accepting either one or the other of theconstructions advanced to be placed on s. 3 of the Act, we are obliged to have a construction, which would eliminate, and avoid such infirmities and unjust consequences, while at the same time making the law work effectively and enforced for achieving the avowed object of the legislation, making it also thereby beyond the reach of an individual to easily and successfully, by his own manipulation flout the same and evade liability under the Act. Such absurdities and unjust results and consequences could be safely averted, in our view, without defeating the objectives of the legislature by construing s. 3 in such a manner as to make the Act and levy imposed by the Act to apply only to all chargeable expenditure incurred in or payments made by a person to a hotel in respect of any accommodation, residential or otherwise, of which the room charges for any unit of residential accommodation is four hundred rupees or above or one thousand two hundred rupees or above, as the case may be, for the relevant period of assessment under consideration and all other charges incurred in or payments made by such person for the provision of any or all such services, amenities and supplies effected as enumerated under s. 5 of the Act. The Act envisages the taxing of such persons who could afford to occupy rooms of such lavish nature and the expenditure incurred by such affluent occupants who could equally, lavishly and ostentatiously spend while occupying such rooms. It is common knowledge that in hotels which have one or more only out of many of the rooms, which satisfy the minimum stipulated rates/charges for attracting the provisions of the Act—the standard or quality of services cannot and could not invariably or uniformly be of any lavish nature, but it would always be only to meet the requirements and cater to the needs to the large majority of the other persons who occupy or utilise the rooms with rates/charges far below the minimum rates stipulated in s. 3 of the Act, failing which the place or hotel concerned may not attract such customers who only are expected to constitute the large majority of its users. To put it more specifically, if the standards or quality of services in a hotel are meant to satisfy or cater to the needs of an ordinary common person—in hotelier parlance, called ‘Janata type or class or category”, merely because a hotel has chosen to have one or more of its rooms or unit of residential accommodation with tariff/charges at or above the minimum rate specified in s. 3 of the Act, all others who avail of the services therein of such ordinary and normal standard of services cannot and need not be allowed to be penalised with such a levy as the expenditure-tax, with its avowed purpose of curbing only lavish, affluent and ostentatious expenditure. The words “at the time of incurring of such expenditure”, also has in our view relevance and make it relatable to only the person in occupation of such rooms as stipulated in s. 3 of the Act.
23. Consequently, in adopting the nature of construction indicated by us as above, the law will also be rendered to operate reasonably, justly and effectively sans any unjust results or absurd consequences, besides keeping it also in consonance with the real and proclaimed object of the legislation itself. Therefore, in our view, the Act though should be applicable to all hotels wherein the rooms charges for any unit of residential accommodation, at the time of incurring of such expenditure, are four hundred rupees or more or one thousand two hundred rupee or more, per day per individual, as the case may be, for the relevant period under consideration, since the charge is levied upon the tax is payable by the customer who avails of any of the services enumerated in s. 5 of the Act, it is the expenditure incurred by such person who occupies and the expenditure incurred during such time for all or any of the services rendered and which are enumerated in s. 5 that alone would constitute chargeable expenditure and it is only in respect of such chargeable expenditure, the assessee under the Act becomes responsible to collect the expenditure-tax at the rates specified in s. 4 of the Act and remit the same in terms of the obligations cast upon him under s. 8 of the Act. Therefore, the levy in all the cases on the total receipts of the hotelier, taking it to be the chargeable expenditure, cannot be sustained and the same is liable to be set aside. In view of the conclusion of ours, the writ petitions are allowed to the extent of quashing the orders of assessment as also the orders passed by the appellate authority with a consequential direction to every one of the assessing authorities concerned in these writ petitions, to reassess and redetermine the tax due, in accordance with our decision and thereupon proceed to recover the sum found to be due on such redetermination. If any amount has been recovered in excess already from the petitioners, it is but inevitable and necessary for the assessing authority to direct refund of the same, while passing orders of reassessment in redetermining the tax due under the Act. These writ petitions are allowed on the above terms and to the extent indicated above. No costs.
Interim orders are vacated.
[Citation : 238 ITR 38]
