ABDUL NAZAR Vs. STO

JUDGEMENT

(1.) When C.M.P. 11216/1991 came up for orders, I heard counsel appearing on either side in detail. I am disposing of the Original Petition.

(2.) Petitioner is an assessee to tax under the K.G.S.T. Act, hereinafter referred to as the Act. He carries on the business of running hotels. His hotel, it is stated, is neither a bar attached hotel or hotel above the grade of two stars. It is therefore argued that the cooked food and beverages sold in his hotel are not to be brought under the taxing net. While assessing the petitioner for the year 1987-88 on best of judgment basis, the authority proposed to assess under S.5A of the K.G.S.T. Act. After overruling the objections raised by the petitioner, first respondent completed the assessment by Ext. P1 order fixing the total taxable turnover at Rs. 16,63,940/-. Rs. 13,53,531/- was fixed as turnover taxable under S.5A of the Act. The total tax, Additional tax and surcharge payable on the purchase turnover of Rs. 15,53,531/- comes to Rs. 90.642/-. Once the turnover alleged to be exigible to tax under S.5A and the tax computed thereon is deleted, it is stated, the tax liability will be Rs. 33,383/- only. He challenges Ext. P1 order in so far as it imposes tax liability on the turnover found exigible under S.5-A of the Act.

(3.) The main argument or the sole argument advanced by the petitioner in the Original Petition was that S.5A of the Kerala General Sales Tax Act, is illegal and ultra-vires the Constitution. Learned counsel representing the petitioner wanted to pursue this contention in spite of the decisions in State of Tamil Nadu v. Kandaswami, 36 STC 191 and Hill Produce Corporation v. State of Kerala, 1990 (2) KLT 436 . At the time of issuing notice, the decision of the Division Bench in Hill Produce Corporation v. State of Kerala, 1991 (1) KLT SN 50 , Case No. 70 (W. A.583/90) was not brought to the notice of this Court. Their Lordships confirmed the decision in 1990 (2) KLT 436. Consequently the challenge against S.5 A of the Act has not been pursued by the petitioner.