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Judgment
M.F. Saldanha, J.-This appeal is an unusual one insofar as the appellant before us is a medical practitioner who is practising in a village by the name of Indi in Bijapur District. He is aggrieved by an order passed by the authority whereunder Professional Tax at the rate of Rs. 2,500/- per annum has been levied on him. It is necessary to clarify that in keeping with the scale of Professional Tax applicable during the relevant period, as a medical practitioner or professional, the appellant would have been liable to pay tax at the rate of Rs. 1,500/- per annum. He has been categorised under Entry 20-C of Schedule insofar as the Assessing Authority as also the Revisional Authority have both come to the conclusion that the appellant has six beds in his premises and that there is also a Pathology Laboratory attached to the same and that consequently, he comes within the category of "Nursing Home". The additional circumstance that has been held against him is that the Assessing Officer has observed that he had visited the premises, that he found that there were six beds and that in addition to that he also observed that there were four in-patients at the time of his visit. He has therefore concluded that patients are retained in the premises for treatment and that consequently the appellant is liable to pay Professional Tax as a doctor running a nursing home.
Though the controversy appears a trivial one, we do find that the appellant has come up to this Court on a matter of principle because his learned Advocate submits that Indi is a small place and that having regard to local conditions where patients invariably come from some distance, that the appellant had decided since he is also a resident there and since he had the place, to provide some beds for those persons whom he treats to lie down there for sometime if the need arises. The appellant''s learned Advocate submits that there is no material whatsoever to support the department''s contention that the appellant is running a nursing home except the observation that there are six beds and he emphasised the fact that the term nursing home presupposes the fact that, it is a small hospital or a medical centre where patients who require to be admitted are retained. In this regard, he submits that it would be equally necessary for a certain amount of staff and several other facilities to be provided before the place can be categorised as a nursing home. He produced before us the reply received from the department whereunder he had asked for the inspection report from the Assessing Officer and the officer had pointed out that he had not made any subsequent notes nor retained any such inspection report. The appellant himself does not dispute the fact that there are six beds and that he is a medical practitioner but he has explained the presence of these six beds by pointing out that under conditions prevalent in the rural areas that it is not unusual for a doctor to provide facilities for a short term stay but that this would not change the condition of his clinic into a nursing home. It is in this background that he contends that the appellant was aggrieved by the fact that he was called upon to pay Professional Tax at the rate payable by a doctor running a nursing home and that therefore the order in question is liable to be set aside. In this regard, we need to note that when the case was carried in appeal, that the Appellate Authority upheld these contentions insofar as he relied on the opinion of a senior doctor from the City of Bijapur who pointed out that before a place can be categorised as a nursing home that it is necessary that the facilities for treatment and for a patient to recoup must be provided in that place and that effectively it would have to come within the understanding of a small hospital. The mere existence of some furniture would not categorise the place as a nursing home. The appellant''s learned Advocate has submitted that this reasoning was valid and correct and that there was no ground on which that appellate order could have been revised.
It is necessary for us to resolve this controversy but we do feel considerably handicapped by the paucity of material. The respondent''s learned Advocate has submitted that doctor''s clinic will have to be distinguished from, any other medical centre and that a clinic simpliciter can never explain the presence of six beds. He further submits that the mere existence of this number of beds presupposes the fact that those of the patients who could not be given treatment and sent away and who required prolonged medical treatment were retained within the premises and if there was no other assistant nothing prevented the doctor from rendering the requisite treatment that was required. He submits that in this background if the patients required special treatment or special medical attention, undoubtedly they would be directed to a full fledged hospital but those of the cases which were not of such seriousness have been treated in this place which was the reason why the number of beds were six. Under these circumstances, there is no ground whatsoever for interference with the order in question.
We have already referred to the fact that the record of this case is extremely sketchy. The orders that have been passed have to some extent proceeded on the basis of conjectures and generalisation. Where the appellant seriously disputes a particular position and where the authority insists on categorising him, it would be necessary for the department to have sufficient material with it to justify the levying of a higher rate of tax. As far as this is concerned, the mere existence of six beds or the observations that the Assessing Authority found some persons there whom he considered to be patients may not be sufficient to formally categorise the premises as a nursing home. From this angle, in our opinion, it would be highly desirable that the Assessing Officer visits the premises, takes note of the number of attendant staff available and also ascertains from the persons whom he considers to be in-patients as to whether in fact they have been residing there, whether this is on payment, what is the period for which they have been residing and from these and such other circumstances if material exists that the appellant is in fact running a nursing home, it shall be in order for the Assessing Authority to charge him at the prescribed rate with effect from 1-4-1995 namely the current financial year.
On the state of the present record however we are not satisfied with the material justifying the imposition of tax at the higher rate for the past years. Therefore the appellant shall be liable to pay only at the rate applicable to a medical practitioner simpliciter having regard to the place where he is practising. If any additional amounts have been recovered from the appellant, the same shall be adjusted for the subsequent periods. It is clarified however that the revision of the earlier orders shall not bind the department if they do come across valid and cogent evidence that the appellant is in fact running a nursing home and that they would be justified in levying the higher Professional Tax at the rate payable by doctors running nursing homes with effect from 1-4-1995 or such other date as the evidence suggests that the premises are being run as a nursing home.
The petition partially succeeds and stands disposed of. In the circumstances of the case, there shall be no order as to costs.