TMI Blog1992 (12) TMI 219X X X X Extracts X X X X X X X X Extracts X X X X ..... read as under: 8(1) The entertainments tax (and the show tax) shall not be charged on payment for admission to any entertainment where the (State Government) is satisfied: (a) that the whole of the takings thereof are devoted to philanthropic, religious or charitable purposes without any charge on the takings for any expenses of the entertain, or (b) that the entertainment is of a wholly educational character in the case of difference by the (State Government) in the department of education; or (c) that the entertainment is provided for partly educational or partly scientific purposes by a society, not conducted or established for profit; or (d) that the entertainment is provided by a society which is established solely for the purpose of promoting the interest of the industry of agriculture or the manufacturing industry, or some branch thereof or the public health, and which is not conducted for profit, and consists solely of an exhibition of the products of the industry, or branch thereof, for promoting the interests of which the society exists or of materials, machinery, appliances, or foodstuffs, used in the production of those products, or of articles which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tre, Amateur Theatre or Amateur Jatra. Explanation: (a) Group Theatre or Amateur Theatre or Amateur Jatra means a registered or unregistered society or a group of persons formed exclusively for the purposes of cultural activities and not for monetary gains by engaging artistes who are not paid any regular or contractual fees. Amateur Theatre also includes any amateur organisation engaged in dance and music... 3. On a Writ Petition filed by one of the professional theatres assailing exemption granted to those groups who were engaged in cultural activities, only without monetary gains, the High Court held that the classification made on basis of engagement of a paid artist was not reasonable as it did not serve the legislative objective sought to be achieved by Section 8 of the Act consequently it was ultra vires. It was held that Section 8 empowered the Government to grant exemption to any entertainment or class of entertainment if it was for social or educational or scientific purpose and since dramatic performance given by a professional group on public stages could not be said to be devoid of any social values, the classification made by the Government between the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gagement of a paid artist. The basic distinction is on the nature and purpose of activities performed by the two. A commercial or profit making venture has always been considered to be a class different than the one engaged in non-commercial activities. Classification based on such distinction is well recognised and is accepted as valid for purposes of revenue. Under the impugned notification a group giving amateur performance is first to be registered as such and then granted a certificate that it was giving amateur performances. Whereas a professional theatre is not required to do so. The distinction between two groups being rationale and in keeping with the objective of Section 8 the High Court was not justified in striking down the notification as being ultra vires. 7. Even the infirmity found by the High Court in the notification, on absence of power in the amended Section 8 of the Act, from granting exemption to any theatre or jatra on giving performance and shows not for monetary gains is not well founded. According to the High Court such power was specifically provided for under Clauses (a) and (c) of the unamended Section 8 but the same having been omitted from the amen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ise has been held to be valid the impugned notification cannot be struck down for granting exemption on those very grounds On which it could be granted under the unamended section. B.P. Jeevan Reddy, J. I agree with my learned brother Sahai, J. that this appeal ought to be allowed. The reasoning - rather over-simplified - adopted in the judgment under appeal, however, impels me to say a few words. 10. The Bengal Amusements Tax Act, 1992 was enacted to provide for levy of tax upon entertainments. Section 2(4) defines the expression 'entertainment'. It includes any exhibition, performance, amusement, game or sport to which persons are admitted on payment. Section 3 is the charging section. It provides that there shall be charged, levied and paid to the State Government, a tax on all payments for admission to any entertainment. Section 8 confers upon the Government the power to exempt any entertainment or class of entertainment. 11. Section 8 of the Bengal Amusement Act as substituted by West Bengal Taxation Laws Amendment Act, 1961 reads as follows: 8. The State Government may, for social educational or scientific purposes, by general or special order, exempt f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ging artistes on payment of regular or contractual fees. By order of the Governor, sd/- N.P. Bagchee Spl. Secy. to the Govt. of West Bengal 14. A reading of the impugned notification shows that it repeals three notifications issued earlier under Section 8 (both before and after its amendment). The only exemption from tax now provided is 'in respect pf any performance organised by a Group Theatre, Amateur Theatre or Amateur Jatra subject to the condition that the organiser of such performances shall obtain necessary certificate from the appropriate authority declaring them as bona fide group theatre, amateur theatre or amateur jatra . The Explanation appended to the notification contains three clauses. Clause (a) defines Group Theatre/Amateur Theatre/Amateur Jatra whereas Clause (c) defines Professional Theatre/Professional Jatra. Clause (b) defines the expression appropriate authority' referred to in the body of the notification. Clause (a) of the explanation says that a Group Theatre/Amateur Theatre/Amateur Jatra means a registered or un-registered society ; or a group of persons formed exclusively for the purposes of cultural activities and not for monetary gains b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the amendment of Section 8. There is a qualitative difference between the un-amended and amended Section 8. The un-amended Section 8 expressly stipulated that exemption can be granted only in the case of entertainment which is not conducted or established with a profit motive whereas the amended Section 8 does not stipulate any such condition. The change must be deemed to be deliberate. In such a situation, the impugned notification which again stipulates the aforesaid condition (absence of profit motive) is outside the ambit of amended Section 8. Correctness of the above view is questioned in this appeal. 16. Section 8 confers the power upon the Central Government to exempt, fully or partly, the entertainment tax for any entertainment or class of entertainment subject to such conditions as may be specified in its order. The entertainment to be exempted should, however, be designed to serve social, educational and scientific purposes. So long as the power is exercised for achieving the said ends, the exercise is unobjectionable. 17. The impugned notification says that no entertainment tax shall be levied on performances organised by a Group Theatre/Amateur Theatre/Amat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d so we must not be let to ask in wonderment; What after all is the operational residue of equality and equal opportunity? But this does not and should not mean invalidation of a proper classification designed to achieve the objective underlying the enactment. 19. Power of exemption has been described as 'conditional legislation' by a Constitution Bench of this Court in Man Trading Co. v. Mill Mazdoor Sabha and not in the nature of delegated legislation. Whether this power is treated as conditional legislation or as a species of delegated legislation, the test is whether the power is exercised for the purpose(s) indicated. In this case, it is. I am, therefore, unable to agree that the impugned notification makes an invidious discrimination or unreasonable classification between theatres similarly situated. True it is that even a professional theatre/professional jatra may also provide dramatic performances to promote social, educational and scientific purposes. Even so, the distinction remains viz., while one is held with a profit motive, the other is not. From the point of view of levy of entertainment tax, which ultimately is passed on to the public (audience), the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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