TMI Blog1990 (11) TMI 406X X X X Extracts X X X X X X X X Extracts X X X X ..... amed Ratan Talkies at Shalabatpura locality in the Sutra city. The said cinema house is a part of a double decker threatre. One cinema house being Rupam talkies situated on the ground floor and petitioner's Ratan talkies being at a height of about 35 feet from the ground floor. The petitioner and his firm at the time of construction of the theatre made a provision for a lift to go to the upper deck that is at a height where Ratan talkies is situated. In the beginning, the petitioner and his firm gave benefit of the lift, free of charge to the cinemagoers. The construction of the lift was done by him at huge cost as submitted by the petitioner. According to the petitioner, maintenance cost of the lift was also going to be prohibitively e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly dated 14-6-1978 submitted that he was not prohibited from charging such charge on use of the lift. It appears that thereafter respondent No. I sent further letter dated 21-7-1978 to the petitioner maintaining that charge for lift cannot be collected by the petitioner and if he wanted to collect charge, he may collect only on condition that the petitioner should collect entertainment tax on this charge of ten paise per person for the use of the lift. The said communication is at Annexure D. Thereafter, the petitioner made a representation to the Second respondent State of Gujarat in Finance Department. The finance Secretary through his subordinate officer's letter dated 15-12-1978, however, rejected the representation of the petitione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... question is, whether such payment, which the petitioner collects from the cinegoer, can be brought within the network of the Act. The answer to this question depends upon true construction of the relevant provisions of the Act. Section 3(1)of the Act is relevant charging section for our present purpose. It provides that there shall be levied and paid to the State Government on every payment for admission to an entertainment, other than the payment for admission referred to in clause (b), a tax, at the following rates......... We are not concerned with the rates of tax. Clause (b) also is not relevant for our present purpose as it refers to drive-in-cinema. The petitioner's cinema is not drive-in-cinema. From Section 3(1), it becomes ob ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g) to include various payments such as payment for seats or other accommodation in a place of entertainment. Especially, clause (v) of Section 2(g) is worth noting in this connection. It provides that any payment for any purpose whatsoever connected with an entertainment which a person is required to make as a condition of attending or continuing to attend the entertainment in addition to the payment, if any, for admission to the entertainment. On the facts of the present case, it is difficult to comprehend as to how a person who pays ten paise per upward trip in lift for approaching the cine auditorium on the first floor is paying for being admitted to a place where entertainment is held. The term 'entertainment' as seen above incl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ise per passenger who is given facility of using lift situated in the cinema theatre is not any payment received for admission to any entertainment. It is easy to visualise that in a cinema theatre especially double decker cinema, lift facility may be offered for convenience of cinegoers to go to upper floor where cinema auditoriums are situated, on upper floors, there may be book stalls, restaurants, ice-cream parlours and without entering the auditorium, person may like to utilise any of these other services or facilities. He may go to purchase books on the first floor or second floor. If he chooses to use the lift, he has to pay for it. But that may have nothing to do with the picture show which may be exhibited in the auditorium. He may ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ained from levying and collecting entertainment tax on the lift charge of ten paise which the petitioner is charging from passengers who voluntarily wish to utilise the facility of lift at the petitioners' theatre. In view of the said decision of ours, and the relief which is given to the petitioner, the alternative submission that the provisions may be declared as ultra vires would not survive. Hence, prayer 19(A) is not granted as it has become of academic interest in the light of our granting prayer 19(B) to the petitioners. As the petition is being allowed, whatever deposits of lift charges have been kept by the petitioner in a separate savings bank account as per the interim order dated 24-9-1979 will now be permitted to be appropr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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