STATE OF KERALA Vs. THARA JAYAKUMAR

JUDGEMENT

(1.) These writ appeals are filed by the State of Kerala and its officers challenging the judgment of the learned Single Judge, holding Section 11 of the Kerala Finance Act, 2013, for short, the 'Act', as unconstitutional and void. We heard the learned Special Government Pleader for the Department of Taxes and the respective learned counsel appearing for the contesting respondents.

(2.) The provision impugned in the writ petitions provides that there shall be levied and collected a cess to be called "Mangalya Nidhi Cess" on every wedding and its connected celebrations conducted in hotels having the classification of Three Star and above, or in auditoriums with a seating capacity of above five hundred including that of dining halls, at the rates specified in the Table in sub-section 1 of Section 11 of the Act.

(3.) Challenging the impugned judgment, the learned Special Government Pleader argued that the impugned cess is introduced in exercise of the legislative powers referable to Entry 62 of List II of the Seventh Schedule of the Constitution and that imposition of such a cess would not amount to double taxation. It was argued that the impugned cess, even if it is addition to an existing tax, that is permissible in terms of the constitutional provisions. It was further argued that 'cess' is nothing but 'tax' and the imposition as per Section 11 of the Act cannot be considered as a 'fee' as it is not charged for rendering any specific service to the beneficiary; and therefore, no quid pro quo is necessary. It is also submitted that even if the impugned cess is considered as a 'fee', the legislative power to impose it can be traced to Entry 66 of List II of the Seventh Schedule.