TaxTMI 
TaxTMI 
2017 (4) TMI 1392
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....the Andhra Pradesh Tax on Luxuries Act, 1987, purportedly with a view to mobilise additional resources, by imposing a tax on luxuries in Hotels and Lodging Houses. The Act came into force on 15-06-1987. It was enacted by virtue of the powers conferred under Entry 62 of List II of the VII Schedule to the Constitution of India. 5. In A.B. Abdulkadir v. State of Kerala (AIR 1976 SC 182), the Supreme Court upheld a levy on tobacco, on the ground that tobacco products have a deleterious effect upon health. Taking clue from the said decision, the State of Andhra Pradesh introduced an amendment under Act 9 of 1997 with effect from 01-08-1996. By the said Amendment Act, Section 6 (1A) was inserted, providing for levy and collection of tax on the turnover of receipts of a tobacconist, relating to the supply of luxuries. Section 4-A was inserted mandating registration of every tobacconist. 6. Several writ petitions were filed on the file of this Court challenging the Amendment Act. The petitioner herein also filed a writ petition in W.P.No.16909 of 1996. Since no stay was granted during the pendency of the writ petition, the petitioner claims to have paid luxury tax every month from 01-08-....
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....ate Governments. It was, therefore, submitted that if the appellants are allowed to retain the amounts collected by them towards luxury tax from consumers, it would amount to "unjust enrichment" by them. 93. In our opinion, the submission is well founded and deserved to be upheld. If the appellants have collected any amount towards luxury tax from consumers/customers after obtaining interim orders from this Court, they will pay the said amounts to the respective State Governments....." 10. After the judgment of the Supreme Court dated 20-01-2005, the Commercial Tax Officer, Sarojini Devi Road Circle, Secunderabad, issued two notices dated 24-11-2005, demanding payment of luxury tax allegedly collected by the petitioner from its customers together with interest. The petitioner filed a reply dated 02-12-2005 denying the allegations. 11. Thereafter, the Commercial Tax Officer, S.D. Road Circle, Secunderabad, and the Commercial Tax Officer, Kurupam Market Circle, Visakhapatnam jointly filed a Contempt Petition (Civil) No.40 of 2006 on the file of the Supreme Court alleging that the petitioner wilfully disobeyed the directions issued by the Supreme Court in its judgment. The petition....
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....aggrieved by the orders that may be passed by the petitioners, they are at liberty to question the same before an appropriate forum. 10. Pursuant to the directions issued by this Court dated 09-11-2012, the respondents have deposited a sum of Rs. 10 lakhs each before the Registry of this Court towards the professional fee/ charges of the Auditors/Chartered Accountants. In view of the disposal of these contempt petitions, the said amount, along with accrued interest, be disbursed to the Auditors/Chartered Accountants within a month's time from today by preparing appropriate Demand Drafts." 14. The aforesaid orders, dated 06-02-2014 was later clarified by a further order dated 11-02-2014 by the Supreme Court, which reads as follows: "In order dated 06-02-2014, in paragraph 9, we had used the expression, "..... proceedings apart from maintainability". By using that expression we mean, "including the maintainability of the proceedings". 15. Thereafter, the Commercial Tax Officer, Visakhapatnam, who is the 2nd respondent herein issued a show cause notice dated 10-08-2015 on the ground that the petitioner collected a sum of Rs. 62.80 crores from its customers towards luxury tax and ....
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....so come up with writ petitions in W.P.Nos.7635 of 2017 and 8240 of 2017. In those writ petitions also, questions of jurisdiction and limitation have been raised, in response to the objection relating to the maintainability of the writ petition on the ground of availability of alternative remedy. By separate orders passed today in those writ petitions, we have held prima facie that these are not open and shut cases to enable the petitioners to bypass the alternative remedy of appeal and that since some questions of fact are also involved, the petitioners should file a statutory appeal. Nevertheless we have retained the writ petitions with a direction to the petitioners in those cases to go before the Appellate Authority, on the short ground that one of the questions raised in the writ petitions is actually in a twilight zone. The question that lay in the twilight zone is as to whether the remedies provided under the Act are available to a person to whom the Act itself has no application in view of the decision of the Constitution Bench of the Supreme Court striking down the particular provision as unconstitutional. Therefore, instead of repeating the very same findings in this case ....