The writ petition is filed by the State against Ext.P5 order of the Kerala Sales Tax Appellate Tribunal, that allowed an appeal preferred by the respondent against an order levying luxury tax on it under the Kerala Tax on Luxuries Act, 1976, for the assessment years 2005-2006 and 2006-2007. The facts in the writ petition would reveal that the respondent is an ayurvedic centre which is functioning as a hospital with in-patient facility providing accommodation and other services to its residents. The Assessing Officer by Ext.P1 order found that the premises of the respondent had 20 cottages, out of which four rooms were in the main block and 16 cottages were in the hospital block, and that some of the rooms were air conditioned and the other 10 non air conditioned rooms were meant for letting out to in-patients cum residents. It was also found that the premises contained panchkarma theatres and yoga rooms and that the Tariff rate declared for some of the cottages, villas and rooms was above 1500/- rupees. The verification of the books of accounts revealed that the respondent centre was offering various ayurvedic treatments such as abhyangam, kizhi and dhara etc., and that the ayurvedic therapy like massage, slimming treatment, steam bath etc., were also administered to customers at their option. Thereafter, relying on the brochures and photographs that appeared on the website of the respondent centre, the assessing authority came to the conclusion that the respondent centre satisfied the description of the term 'hotel' for the purposes of the Kerala Tax on Luxuries Act and proceeded to levy luxury tax on the respondent. In an appeal preferred before the 1st appellate Authority, the said authority confirmed the order of the assessing authority. In a further appeal before the Appellate Tribunal, however, the Appellate Tribunal considered the material, that was relied upon by the Assessing Officer, to ascertain the nature of the activities carried on at the respondent centre, and came to the conclusion that the respondent centre was essentially a hospital that was run to provide ayurvedic treatment to persons, with the difference that the accommodation provided therein was of a higher standard. The Appellate Tribunal, therefore, allowed the appeal preferred by the respondent assessee and set aside the orders levying luxury tax for the said years. As already noted, Ext.P5 order of the Appellate Tribunal is impugned in the present writ petition preferred by the State.
2. I have heard Smt.Lilly K.T., the learned Government Pleader appearing on behalf of the petitioner, who would vehemently contend that the Tribunal went wrong in entering a finding that the respondent cannot be subjected to levy of luxury tax. It is her contention that most of the treatment that is provided in the respondent centre is of the nature of comfort treatments that are often availed by tourists and other persons looking for relaxation and comfort. It is her specific contention that the nature of the activities carried out in the respondent centre are such that it would not answer to the description of the term 'hospital' but would come within the description of the term 'hotel' for the purposes of levy of luxury tax under the Kerala Tax on Luxuries Act, 1976. She would also place reliance on a decision of this Court in the judgment dated 21.05.2012 in W.P.(C).No.14730 of 2008 in the case of Kairali Ayurvedic Health Resort Pvt. Ltd., where on the facts of the said case it was held by a single judge of this Court that the findings of the Appellate Tribunal, holding the said health resort liable to luxury tax as a hotel, did not merit any interference in the writ petition.
3. On a consideration of the facts and circumstances of the case as also the submissions made across the Bar, I am of the view that the present writ petition, in its challenge against Ext.P5 order of the Tribunal, must necessarily fail. It is not in dispute that during the assessment years there was no levy of luxury tax in respect of a luxury provided in a hospital. During the period in question, there was only a levy of luxury tax in respect of luxury provided in a hotel, house boat, hall, auditorium, kalayanamandapam or place of like nature. The interpretation of the phrase “place of like nature” had to necessarily be by following the principle of ejusdem generis and, therefore, could not take in luxury, if any, provided in a hospital. The question, however, is whether the respondent centre would answer to the description of a hospital for the purposes of exclusion from the levy of luxury tax. In this connection, I find that in Ext.P5 order of the Tribunal, the Tribunal has gone through the material, that was perused by the Assessing Officer to come to the conclusion that the respondent centre was actually a hotel providing facilities for ayurvedic treatment, and arrived at a contrary conclusion that respondent was in actual fact an ayurvedic hospital. The relevant findings in Ext.P5 order of the Tribunal in paragraphs 4 and 5 reads as follows:-
“4. Since the main reason for the assessing authority to come to the conclusion that the appellant was running a resort rather than an ayurveda hospital as disclosed from the website published by the appellant. We have a searched the Internet to have a view of the illustrative brochure of the appellant published in their website www.the athreya.com. We have also searched the blog of the appellant, taken copies of the illustrative brochure and blog and kept it in the file for reference. On perusal of the illustrative brochure published by this appellant in their website www.the athreya. Com., we are of the view that the appellant is running a hospital and not a place to stay. As fairly conceded by the counsel for the appellant the brochure is a little colourful which gives stress on the comfort for stay. According to the learned counsel this was intended to attract patients from foreign countries for ayurvedic treatment. According to the learned counsel patients from foreign countries coming to India for ayurvedic treatment insist for comfortable stay and hence in the illustrative brochure published through the website the appellant had stressed availability of comfortable stay in the hospital. On going through the packages offered by the appellant through their website we find that the packages offered by the appellant are treatment packages which include room rent, charges for medicine, charges for diet etc. Rate varies according to the comfort of the room provided. When more charge is levied for single room less charge is levied for shared room. The website gives introduction to Kerala Ayurveda, Yoga, Martial Arts etc. The website also states that Kerala is the most sought after tourist destination in the world. The website also states about dental tourism. The blog states about common diseases in gynaecology, post natal, back pain, common diseases in paediatrics, jaundice, mumps, typhoid, bronchial asthma, allergic respiratory disease, epilepsy, hydrocephalus, diarrhoea, viral hepatitis, cerebral palsy, iron deficiency anemia, juvenite rheumatold arthritis, rheurmatic heart fever, urinary infection, nephritic syndrome, pica, ophthalmology diseases. Varicose veins, teno synovitis, hernia, varicose ulcer, migraine sinsites etc, and such other diseases and the a ayurvedic treatment provided for these diseases and ailments. It is true that in the website of the appellant there is an offer that the appellant will arrange site seeing facility on special request, this offer need not be considered as a service provided by the appellant. As already discussed the packages offered by the appellant are treatment packages including room rent, charges for medicine and charges for diet. It may be true that the appellant is expecting patients from foreign countries. If patients coming to the appellant from foreign countries for treatment requested the appellant, after treatment for arranging site seeing, this in our view need not be taken to mean that the appellant is running a place to stay and that the appellant is providing services which ministers comfort or pleasure as defined in Section 2(ee) of the Act. The appellant produced before us the muster roll of the employees working in the hospital, admission register of patients in the hospital, medical prescriptions, bills etc, to show that the appellant is running an ayurvedic hospital and not a place of stay. The appellant also produced registration certificate issued by the Secretary, Nattakom Grama Panchayat registering the appellant as a hospital. These documents produced by the appellant also would show that the appellant is running a hospital and not a place of stay.
5. The assessing authority placed much reliance on the green leaf licence certificate No.GL.014/05 issued by the Department of Tourism to the appellant. Copy of the green leaf licence certificate states that the Department of Tourism, Government of Kerala after examination by the duly appointed ayurveda Classification Committee, confer the status of Green Leaf on the appellant. The certificate itself would show that the duly appointed Ayurvedic Classification Committee had examined the ayurvedic hospital run by the appellant. The mere fact that this certificate is issued by the Department of tourism does not by itself mean that the appellant is running a resort. As already discussed the appellant is soliciting patients mainly from foreign countries by advertising through their website. When patients from foreign countries reach here it is necessary to provide them adequate comfort and facilities which they require. The fact that the Department of Tourist has fixed certain norms of running high standard ayurveda hospital and is issuing green leaf certificate to such hospitals which maintained this high standard does not mean that the institution run by the appellant loses its character as an ayurvedic hospital and it becomes simply a resort.”
4. In the light of the express findings of fact, as above, by the final fact finding authority under the Kerala Tax on Luxuries Act, I do not see any reason to interfere with the said order of the Appellate Tribunal that holds the respondent not liable to luxury tax under the Kerala Tax on Luxuries Act.
Resultantly, the writ petition fails and is accordingly dismissed.
A.K.JAYASANKARAN NAMBIAR JUDGE mns