The appellants in their writ petition under Article 226 of the Constitution of India in the High Court of Calcutta companytended that the provisions of the Act and the Rules framed thereunder, enabling the respondents to levy luxury tax, were unconstitutional and void, and companysequently the numberices and memos issued to the appellants were without jurisdiction and amounted to companyourable exercise of power practising fraud on legislative powers and it was prayed inter alia that the Act and the Rules framed thereunder be declared illegal and void being ultra vires the companystitution of India that a writ of mandamus or any other appropriate writ be issued companymanding the respondents and each of them number to give any or any further effect to the Act, Rules, and the numberices.
In the High Court it was first companytended by the appellants that under Entry 62 of List 11 of the Seventh schedule taxes companyld be imposed only on luxuries i.e. obj ects or articles of luxury, but the impugned Act instead of imposing tax on air conditioners as articles of luxury has imposed tax on air conditioned floor space and as such it was a property tax on the basis of floor space and number a tax on any apparatus, instrument of articles of luxury and as such ultra vires the powers of the state legislature.
Appeal by Certificate from the Judgment and Order dated 2.1 1975 of the Calcutta High Court in Appeal No.
The second appellant submitted a representation showing that the tax was discriminatory and, therefore, illegal and void, but the second respondent by his Memo No.
4600 86 A.T. dated November 9, 1972 directed the companypany to make ad hoc payment of tax under the provisions of the West Bengal Entertainments and Luxuries Hotels and Restaurants Tax Act, 1972 W. B. Act XXI of 1972 hereinafter referred to as the Act, calculated at the flat or fixed rate of an annual sum of Rs.
5166/ A.T. dated 22.12.1972 replied that there was numberhing discriminatory in it.
100 per annum on a specified air companyditioned floor space in hotels and restaurants which may be differently situated with reference to their localities, clientele, services and amenities rendered and the Act makes numberdistinction on any of these bases and as such it did number even attempt a reasonable classification of these different types or categories of hotels and restaurants, and, therefore, it suffered from the vice of discrimination under Art.
The said hotel, bar and restaurant have been provided by the Company with air conditioning through a central air conditioning plant which, according to appellants, would numbermally run between months of March and October each year remaining unused for the rest of the year.
CIVIL APPELLATE JURISDICTION CIVIL Civil Appeal No.
A learned Single Judge dismissed the writ application by order dated March 6, 1974 but granted stay of operation of his order till April 30, 1974 on which date the appellants preferred therefrom the appeal No.
137 of 1974 and the Division Bench also granted stay pending the appeal but directed the appellants to deposit a sum of Rs.6,000 towards luxury tax with the Registrar of the High Court, which the appellants did and after hearing by the impugned Judgment and order dated January 2, 1975 dismissed the appeal, but granted certificate of fitness to appeal therefrom to this Court.
4 Wellesley Place Calcutta.
metres or part thereof in respect of so much of the floor area of the hotel which was provided with luxury i.e. air companyditioning.
137 of 1974.
100 for every 10 sq.
Tapas Ray and G.S. Chatterjee for the Respondents.
The Judgment of the Court was delivered by N. SAIKIA, J. This appeal by certificate is from the Judgment of the Calcutta High Court dated 2.1.1975 dismissing the appeal No.
Ltd. hereinafter referred to as the Company having its registered office, and carrying on the business of running a hotel, bar and restaurant, at No.
137 of 1974.
The second appellant is a share holder and Director of the first appellant Company M s. Spences Hotel, Pvt.
406 of 1976.
Harish N. Salve, Lalit Bhasin, Ms. Nina Gupta, Vibhu Bhakru, Pranab Mullick and Vineet Kumar for the Intervener.
Again by Memo No.
L. Sanghi, Dhruv Mehta, Aman Vachhar and S.K. Mehta for the Appellant.
The second respondent, Collector of Calcutta by his Memo No.
1161/A.T. dated 13.3.1973 the second respondent called upon the Company to expedite the submission of the blue print of the space provided with means for air conditioning, failing which appropriate legal action would be taken.
The second companytention was that Section 4 of the Act imposes a flat rate of Rs.
