TMI Blog2013 (4) TMI 457X X X X Extracts X X X X X X X X Extracts X X X X ..... also that if the exhibitor derives some benefit in terms of money, it would be deemed to be an entertainment. The identity of the person who derives pleasure or entertainment is wholly irrelevant. The event which is organized by the petitioner is evidently organized on a massive scale. The nature of the event, the character of the goods displayed, the benefit which is derived by the exhibitor in terms of money and the nature of the budget both of the organizer and the exhibitors are indicative of the fact that the exhibition in the present case to which admission is made against the payment of money falls within the definition of the expression "entertainment" in section 2(a). In the circumstances, there is no occasion to direct a refund. Since we have held against the petitioner on the issue of exigibility to tax under section 3 of the Bombay Entertainments Duty Act, 1923, the direction which has been sought to the Commissioner of Police not to insist upon an NOC of the Additional Collector will not survive. Revisional remedy – Held that - An objection was raised in the affidavit in reply to the maintainability of the petition on the ground that a revisional remedy is available ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the petitioner was under the mistaken belief that the IIJS and IIJS Signature events are exigible to entertainment duty under section 3 of the Act. The form prescribed by the Commissioner of Police for the grant of an NOC for such events requires the petitioner to furnish the consent of the Additional Collector of Mumbai Suburban District and it has been stated that the latter refuses to issue an NOC without payment of entertainment duty. Between 4 and 8 August 2011 the petitioner organized IIJS 2011. By a letter dated July 19, 2011 addressed to the Additional Collector, Mumbai Suburban District (the third respondent) the petitioner tendered under protest entertainment duty in the amount of ₹ 38.91 lacs. On July 26, 2011 an application was made to the third respondent for obtaining an NOC. The third respondent granted permission on July 29, 2011 to organize the event subject to the payment of entertainment duty under section 4(2). On the basis of a determination by the Entertainment Tax Inspector, the petitioner tendered an additional amount of ₹ 23.85 lacs under protest to the third respondent making a total of a payment of ₹ 62.76 lacs. Similarly, IIJS Si ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o pass a fresh order after adjudicating on the question as to whether the trade show constitutes an entertainment within the meaning of the Bombay Entertainments Duty Act, 1923. During the pendency of the proceedings, the petitioner addressed communications dated July 24, 2012 and July 26, 2012, to the third respondent. On July 31, 2012, an order was passed by the third respondent holding that the petitioner was liable to pay an amount of ₹ 97.09 lacs by way of entertainment duty in respect of IIJS 2011 which was to be adjusted against the amount of ₹ 62.76 lacs paid by the petitioner. In respect of the IIJS 2012 event which was to be held from 23rd to 27th August 2012, the petitioner filed a writ petition before this court under article 226 of the Constitution. The petition, inter alia, sought to impugn the order dated July 31, 2012, passed by the Additional Collector. An order was passed in the writ petition in terms of minutes of order signed by counsel for the parties. Under the minutes of order the Commissioner of Police was directed to grant his NOC in respect of the event which was to be held between 23rd to 27th August 2012 without insisting on an NOC from the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to refund the amount of ₹ 34.32 lacs and ₹ 17.36 lacs with a further direction to compute the amount of entertainment duty payable in respect of IIJS 2012. The petitioner has in these proceedings questioned the legality of the order dated November 30, 2012 passed by the appellate authority under the Bombay Entertainments Duty Act, 1923. The petitioner also seeks a declaration that the IIJS and IIJS Signature events organized by it do not constitute entertainment within the meaning of the Act and are therefore not exigible to entertainment duty. The petitioner had sought consequential orders of refund in respect of the amounts deposited for IIJS 2011, IIJS Signature 2012 and IIJS 2012. The petitioner also sought a declaration in respect of IIJS 2013 to be held between 22nd and 25th February, 2013 and a direction that it is not necessary to obtain an NOC from the Additional Collector for the purpose of obtaining the permission of the Commissioner of Police. Counsel appearing on behalf of the petitioner submits that:- (i) The annual IIJS and IIJS Signature events organized by the petitioner do not constitute entertainment as defined in section 2(a); (i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It has been stated that a Government Resolution dated December 16, 1971 exempts bona fide and pure art exhibitions from the payment of entertainment duty, but no exemption is available in respect of art exhibitions and fashion shows that are sponsored or backed by any commercial or business institution and which display art or objects for publicity or with a profit-motive. The exhibition of the petitioner results in a generation of revenue of approximately ₹ 5,200 crores and hence, there would be no question, in view of the Government Resolution dated December 16, 1971 to grant an exemption. On these premises, it has been submitted that no case has been made out for interfering with the orders passed by the Additional Collector as confirmed by the Divisional Commissioner. Counsel appearing on behalf of the State has urged that:- (i) The definition of the expression entertainment in section 2(a) is an inclusive definition and comprehends among other things any exhibition to which persons are admitted for payment. Section 3 imposes a levy on payment for admission to any entertainment. In the present case, the petitioner admittedly conducts an exhibition to which person ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion with the aid of any type of antenna with a cable network attached to it or cable television; (ii) the expression 'game' includes video games which are played with the aid of machine which is operated electronically or mechanically or electro-mechanically for the purposes of entertainment or otherwise; and (iii) the expression 'temporary amusement means' the amusement rides and games which are not provided on fairly permanent basis like in amusement park as defined in clause (al) of section 2 read with clause (b) of sub-section (5) of section 3. (emphasis supplied) The expression payment for admission is defined in section 2(b) in a comprehensive manner. The definition includes in clause (ii) any payment for seats or other accommodation in a place of entertainment and in clause (iv) any payment, by whatever name called for any purpose whatsoever connected with an entertainment, which a person is required to make, in any form as a condition of attending, or continuing to attend the entertainment, either in addition to the payment for admission or otherwise. Clause (viii) of section 2(b) also includes any payment by way of sponsorship amo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... clude any kind of amusement, game or sport ... The tests to be applied were formulated by the Supreme Court thus:- Thus, on a consideration of the legal connotation of the word 'entertainment as defined in various books, and other circumstances of the case as also on a true interpretation of the word as defined in section 2(3) of the Act, it follows that the show must pass the following tests to fall within the ambit of the aforesaid section:- (1) that the show, performance, game or sport, etc., must contain a public colour in that the show should be open to public in a hall, theatre or any other place where members of the public are invited to attend the show; (2) that the show may provide any kind of amusement whether sport, game or even a performance which requires some amount of skill; in some of the cases, it has been held that even holding of a tombola in a club hall amounts to entertainment although the playing of tombola does, to some extent, involve a little skill; (3) that even if admission to the hall may be free but if the exhibitor derives some benefit in terms of money it would be deemed to be an entertainment; (4) that the duration of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Rajasthan Entertainment and Advertisement Tax Act, 1957 that in order to bring an exhibition into the definition of entertainment a continuous process of performance may not be necessary, but it is essential that the exhibition should be displayed with a view to provide amusement or gratification of any kind to the visitors and the fact that some persons might derive gratification from the exhibition (though not arranged for that purpose) is not relevant. Section 2(a) of the Bombay Entertainments Duty Act, 1923, defines the expression entertainment in an inclusive sense. A definition which is inclusive, it is well-settled, seeks to bring within its purview something which may not lie within the ordinary connotation of an expression. The definition of the expression entertainment in section 2(a) includes any exhibition to which persons are admitted for payment. The expression payment for admission again is defined in a comprehensive manner to include (i) payment for seats or other accommodation in a place of entertainment; (ii) a payment by whatever name called for any purpose whatsoever connected with an entertainment which a person is required to make in any form ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... p being invited to guests. Since no admission fee is charged for IIJW, the petitioner has been paying entertainment duty on the sponsorship amount-received for IIJW. in accordance with section 2(b)(viii) read with section 3. According to the petitioner IIJW is an event which is separate and distinct from IIJS. In our view, the fact that the exhibition which is organized by the petitioner under the banner of IIJS and IIJS Signature does not involve a musical performance or ramp show is not decisive of the exigibility to the levy of entertainment duty. The fact that in a given case an event involves a musical performance or a ramp show may be an indicator of whether it constitutes an entertainment for the purposes of section 2(a). What the Legislature has, however, envisaged is that an entertainment is to be defined in a comprehensive and inclusive sense. So defined, the definition includes an exhibition to which persons are admitted against the payment of money. As the Supreme Court noted in the judgment in Geeta Enterprises [1983] 4 SCC 202, the expression entertainment has various shades, aspects, forms and implications. The Supreme Court held that the expression is used by an i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f luxuries are understood as meaning something which is purely for enjoyment and beyond the necessities of life, there can be no doubt that entertainments, amusements, betting and gambling would come within such understanding. Hence, the Supreme Court held that the expression luxuries in entry 62, List II, means the activity of enjoyment or indulging in that which is costly, or which is generally recognized as being beyond the necessary requirements of an average member of society and not articles of luxury. These observations in Godfrey Phillips [2005] 139 STC 537 (SC); [2005] 2 SCC 515 were made in the context of a constitutional challenge. There is no constitutional challenge to the provisions of section 2(a) in the present case. For these reasons, we have come to the conclusion that there is no merit in the challenge to the validity of the order dated November 30, 2012 passed by the Divisional Commissioner in appeal arising out of the order of the Additional Collector dated July 31, 2012. In the circumstances, there is no occasion to direct a refund in favour of the petitioner. Since we have held against the petitioner on the issue of exigibility to tax under section 3 of ..... 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