- (1.) These are two Special Appeals directed against the order dated August 10, 1990 of the learned Single Judge. The learned Single Judge under his aforesaid order allowed the writ petition filed by Indian Hotels Company Ltd. (for short, IHC), set aside the order of assessment made by the assessing authority under the Rajasthan Lands & Buildings Tax Act, 1964 (for short, the Act) and directed the assessing authority to re-hear the arguments afresh after giving notice to Jai Mahal Palace Hotel Pvt. Ltd. (for short, JMHL) Proprietors of Jai Mahal Palace Hotel, Jaipur and to make a fresh assessment order after deciding the question of ownership in the light of the observations made by the learned Single Judge. Two Special Appeals have been filed, one by IHC (D.B. Civil Special Appeal No. 6/91) and the other by the State of Rajasthan (D.B. Civil Special Appeal (Writ) No. 341/1991). So far as the Special Appeal filed by the IHC is concerned, it is confined against the order of the learned Single Judge in so far as the order of retention of the amount paid by it towards tax under the Act is concerned and it has been prayed in the Special Appeal that the assessing authority be directed to refund the amount of tax amounting to Rs. 21,78,295/- alongwith interest at the rate of 18% p.a. We will deal with both the Special Appeals and decide both of them by this order as they arise out of the same order of the learned Single Judge.
(2.) The facts of the case are contained in the order of the leaned Single Judge and suffice it to say that JMHL, a company registered under the Companies Act are the proprietors of Jai Mahal Palace Hotel situated in the city of Jaipur. The IHC is carrying on the business of Hotel and Caterers in the important cities in India. They entered into an agreement (Annr. to the writ petition) with JHML on August 28,1985. Under the aforesaid agreement JMHL conferred the grant to IHC to run the hotel and the IHC accepted the same. According to the case of IHC they were not the owners of the hotel and the ownership of the hotel continued to be with JMHL, and under the agreement a right to run the hotel i.e. the business, has been conferred on IHC and the IHC are not the 'owner' thereof within the meaning of Section 2(10) of the Act and as such it is not liable to pay the tax under the Act and the liability to pay the tax was of JMHL who were and continued to be the owner despite the agreement Annr. 1 entered into with IHC.
(3.) Learned Single Judge framed a question as to whether the land or building and/or both have been leased out for a running hotel business with all the furnitures, fittings, crockery, cutlery, air conditioners, electric fans light fittings etc. and all other movables for the said purposes would amount to a transfer of business and whether the relationship of a lessor or lessee is created. Learned Single Judge said that this question would have to be determined not only with reference to the terms of the agreement but also the specific conduct of the parties or the way in which the parties interpreted the document and therefore, in the circumstances of the, in the opinion of the learned Single Judge, it was essential for the Assessing Authority to have considered all necessary documents and also to hear JMHL before assessing the IHC The learned Single Judge further held that it was equally essential to have considered Section 17 of the Registration Act, 1908 and to find out whether or not the registration was necessary and when the agreement was not registered, what is its effect In short, the learned Single Judge held that before making the order the Assessing Authority should have called upon JMHL when it has moved an application before this Court that they have retained the ownership of the premises and are liable to be assessed.;