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Commissioner of Excise Entertainment, Polo Amusement Park Ltd. Versus M/s Polo Amusement Park Ltd. & Others, Govt of NCT of Delhi And Another

2016 (4) TMI 1059 - DELHI HIGH COURT

Levy of entertainment tax - Water sport activities offered by Polo Amusement - Polo amusement contended that levy of ET under the ET Act is conditional upon the activity being "amusement" where people are given admission to an entertainment as defined under Section 2(a) - Held that:- the charging provision, Section 6 (1) enacts that tax is to be levied and paid on all payments for admission to any entertainment. Section 2 (m)(iv), in the Court's opinion, covers the payment made by visitors to th .....

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at an individual has to make as a condition of attending the entertainment. This condition is satisfied in the case of all those entering inside the Petitioner's club. If they want to use the water sports facilities, they have to make the payment for the entrances. Thus the requisite conditions are fulfilled.

It is consequently held that there is no merit in the petitioners’ argument that participation in the activities provided by Polo Amusement to its subscribers’ guest, i.e. Sea Wa .....

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Entertainment Tax constitutes 20% of the total gate money received for any determination of ticket..” and directed that Entertainment Tax is levied on the facility @ 20% of the gross proceeding of gate money.

Held that:- The Court does not see how the GNCTD can justify the additional imposition by the Commissioner. It is true that the Deputy Commissioner (i.e. the authority named as the appellate official under Section 15 (3)) is empowered suo motu revision to modify, annul, reverse .....

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v. Vijaya Stores [1978 (9) TMI 2 - SUPREME Court] is well founded.

Validity of the notification dated 07.06.2007 - Petitioner argued that no distinction can be made between swimming as a sporting event, swimming as an activity undertaken in a hotel or such establishment and swimming in a facility like the one owned by the petitioner, and its Fun Club - Held that:- the Court finds this argument insubstantial. It is firstly well settled that in economic and fiscal matters, the legislat .....

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estion were eligible or not for taxation were certainly a matter for the State to decide, in the exercise of its statutory power. There was no impediment of any kind, whatsoever, for the State to exercise that power. Thus, the issuance of the notification could not have been faulted.

Demand of tax, interest and penalties - Held that:- there is some substance in the argument of Polo Amusement that assessment was made in respect of all days including holidays. To facilitate a better inq .....

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rd to the decision of the assessing authority, be appropriately modified or altered, while working out the final demands. Therefor, the order of the FC, holding that the assessee’s activity was not entertainment and not liable to Entertainment Tax, is set aside. At the same time, the Court holds that without properly invoking power under Section 42, the Deputy Commissioner (first appellate authority) could not have enhanced the demand made by the assessing officer. Accordingly, the order of the .....

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dent : Mr. Hari Shankar, Senior Advocate with Mr. Vivek Chib, Mr. Kushal Gupta and Mr. S. Sunil, Advocates JUDGMENT Mr. Justice S. Ravindra Bhat 1. This common judgment would dispose of a batch of writ petitions; the first writ petition, W.P.(C) 1896/2002 is preferred by the Govt. of NCT of Delhi (hereafter "GNCTD"), which is aggrieved by an order of the Financial Commissioner (hereafter "FC") who held that the respondent - Polo Amusement Park Ltd. (hereafter "Polo Amuse .....

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o Amusement, through its letter dated 28.08.1992 sought permission to set-up an amusement/fun park "Fun 'N' Food Village" (hereafter referred to as "the Fun Village") at Plot Nos. 1279-1280 to 1283-1284 at Village Kapashera, Mehrauli, New Delhi. The Fun Village was initially designed to include well-developed lawns, music and a set of amusements. The entry charges were ₹ 30/- for adults and ₹ 20/- for children. Originally, the ticket holders were to enjoy .....

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t;) carried out inspection in the Fun Village. The area Entertainment Tax Inspector, submitted a report, which pointed out that Polo Amusement had started a Village Club [hereafter referred to as "the Club"] adjacent to the Fun Village with restricted entry on the basis of membership cards. The ET Department issued a letter to Polo Amusement asking it about the Club and to explain the circumstances why this was not intimated prior to the starting of the Club. Polo Amusement was asked t .....

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in different form for all its members and guests on all seven days of the week. Polo Amusement also claimed that several other clubs in Delhi extended swimming facilities to their members who were exempted from ET. Its facilities were no different from those given by other clubs. The ET Department thereafter carried out an inspection on 13.06.1997. This time, the management of the Polo Amusement did not produce any records relating to the life memberships clubbed to the fees collected from the .....

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inspection and materials collected during that time, the ET Department observed that the management was resorting to ET evasion by adopting the so-called membership techniques of the Club. According to the ET Department, the modus operandi used for charging guests one time daily fees of ₹ 2000/- for adults and ₹ 150/- for children was to independent customers by issuing receipts shown against guests of some unknown members on random basis. Such membership numbers were used commonly f .....

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e: This is a water pool starts from the shallow level with the maximum depth of seven feet. Other dimension and sketch of the pool is enclosed. This pool is basically meant for non-swimmers, weak swimmers and also for the perfect swimmers. One can witness waves while swimming. This facility was started in April 1996. 2. Lazy River: Lazy River pool is again meant for the non and weak swimmers. Sketch along with the dimensions of this pool is enclosed. In this pool the recycled water flows slowly .....

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Other dimensions are enclosed along with the sketch of the pool. This facility was started in April 1997. 5. Aqua Shute: One can feel surfing experience after landing in the pool from the top of the slide by sitting on a floating mat. For dimensions you can see the enclosed sketch of the pool. Depth of this Pool is 2 to 4 feet and this facility was started in April 1997. 6. Super Slide: The depth of the pool is one and half feet only and is specially made for the non-swimmers as the non-swimmers .....

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en taken by anyone to promote this sport. We have designed our swimming pools to attract the people of all age groups considering that the majority of the people are from non swimmers who cannot swim in deep swimming pools. Our endeavor is to encourage the non and weak swimmers and to help them to learn how to swim so that they can compete at the international level and can do something for our country." 4. In the meanwhile, the ET Department had advised the management, directing it to appl .....

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#8377; 1,46,090/- calculated on the basis of 20% of the gross proceeds of gate money were payable. The order reads as follows: "The assessee has consistently contended that the activity is swimming and hence should not be taxed unless swimming is taxed. The assessee also submitted that the activity is exempted from the Entertainment Tax in the states of UP, Rajasthan, Gujarat and Maharashtra with provisions/grounds of exemption varies from state to state and submitted notifications related .....

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ax Act and Rule 11 of the Rules framed thereunder. Despite this order, the assessee failed to seek NOC under Section 8 and as such assessment proceedings under Section 15 of the Delhi Entertainment Tax Act were initiated. In view of the Department's ambience in the matter duly noted by worthy Finance Secretary and reflected in seeking of opinion at all levels from Law and Finance Department, the decision taken by the Government is analogous to determination under Section 33 of the Delhi Luxu .....

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facility being water pours as per certified accounts the gross receipts of gate money from 21.9.98 to 31.3.99 were ₹ 7,30,450/- only excluding the period of closure i.e. 1.11.98 to 20.3.99. The Entertainment Tax together constitute gate money. As such the Entertainment Tax constitutes 20% of the total gate money received for any determination of ticket. Accordingly, Entertainment Tax is levied on the facility @ 20% of the gross proceeding of gate money to ₹ 1,46,090/-. Further, inter .....

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From 25.12.98 to the date of this order, i.e. 12.11.99, the interest liability works out for 10 months 18 days to ₹ 30,240. In addition a penalty under Section 28 of Delhi Entertainment and Betting Tax Act to the extent of 2000 is imposed on the assessment year 1998-99 within 15 days from the date of this order. The assessee is further directed to duly apply for registration with the Department under Section 8 of the Delhi Entertainment and Betting Tax Act and Rule 11 of the Delhi Entertai .....

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ot; under Section 2(i) of the ET Act. Polo Amusement, however, argued that people involving and participating themselves in sports activities like football and cricket are not taxed and that in any event sports tax is leviable on spectators and not participants. The Appellate authority was of the opinion that the relevant provisions of the ET Act [Sections 6(2), 6(6) and 7] read with Section 2(m) pre-supposed that entertainment, amusement purposes etc. were liable to ET subject to the condition .....

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ol has sufficient depth of water for swimming. It is further observed from the above facts that in most of these facilities visitors or the patron enters the pool with the help of some instruments/slides instead of swimming through movement of pars of the body like hands and feet. The facilities are basically for the enjoyment of those entering into the Village Club after having paid for admission." The appellate authority clearly held that the activities on offer were not swimming and amus .....

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the basic purpose of the participants is physical fitness/exercise not entertainment or amusement as is the case with the activities in Fun-N-Food Village/Village Club of the appellant. Moreover, the membership charges in the clubs are generally refundable at the time of resignation etc. because the clubs are generally not being run on commercial basis and are open to the members only or for their guests. As regard Five Star hotels, it is understood that such facilities are required to be creat .....

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f in water by means of hands and feet on surface, act of swimming. It is thus clear from above facts that the activities of the appellant basically have amusement/entertainment character and admission is against the payment for admission which may be in the form of membership fee, maintenance charges or entry tickets from other visitors. The fact remains that those seeking admission to the facility have to pay for the same and the purpose of their visit is entertainment/enjoyment and not swimmin .....

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view that the activities of the appellant in the Village Club fall within the definition of Entertainment as the water park is run by the appellant on a commercial basis and is designed to provide entertainment and amusement to the visitors. Since the appellant is charging payment for admission for entry and enjoyment in Village Club payment for admission is taxable under the Delhi Entertainment and Betting Tax Act, 1996. I would further like to comment on the date of liability with regard to ta .....

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ed in Sept. 1998. Aqua Ball was started in June 1999. Section 8 of the Delhi Entertainment and Betting Tax Act, 1996 provides that no entertainment on which tax is leviable shall be held without prior information being given to the Commissioner. Thus it was the responsibility of the proprietor/applicant to give prior information to the Commissioner (Entertainment Tax) regarding entertainment being held by him from April 1996 onwards, as per his own admission, in the Village Club. The liability t .....

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he form of membership fee and maintenance charges from guests. The membership fee in the audited statement of the year 1998-99 is reflected as ₹ 24,38,300/- while maintenance charges from guests are to the tune of ₹ 76,32,470/-. These receipts would, therefore, fall within the definition of payment for admission and shall be liable to tax in addition to charge on account of entry tickets. In view of the above, I do not find merits in the contention of the appellant and appeal is acco .....

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e was given a final opportunity on 07.09.2001 to deposit ET and books of accounts for the period up-to 31.03.2001. It did not comply with the directions and instead furnished a letter dated 18.09.2001, claiming that it had filed a petition before the Financial Commissioner [hereafter referred to as "the FC"]. The ETO, by order dated 15.10.2001 proceeded to assess the ET @ 25% of the gross proceeds from the membership fees and maintenance charges from the guests totalling ₹ 1,13,6 .....

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ge groups - beginners as well as expert swimmers -and the dimensions of such pools were of international standards. The FC felt that the Sports Authority of India (SAI) was the apex body in the area of sports and its opinion carried weight and credibility. On the basis of these materials, it was concluded that the activities at the Club were swimming activities. The FC ruled out the respondent/GNCTD's argument that swimming pools in five-star hotels were mandatory and essential to retain the .....

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collecting any entertainment tax from persons who are club members or guests staying in hotels in Delhi and who pay for swimming facilities in such clubs and hotels, it is not justified in levying entertainment tax on the village club." 9. The FC faulted the ETO's subsequent order of 20.02.2001, holding that since the earlier assessment order upheld in appeal had been accepted, the appellate authority could not enhance the tax liability when the ET Department had not questioned the asse .....

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wing classes of sports activities from liability of entertainment tax on payment for admission, namely:- (a) The activity of swimming, carried out in swimming pools licensed under the Union Territory of Delhi Swimming Pools (Licensing and Controlling) Regulations, 1980 except in swimming pools or water games pools situated within the premises of amusement parks and other place of amusements licensed or liable for obtaining license under the Regulations for Licensing and Controlling places of pub .....

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ties. The impugned 2007 notification, it is contended, substantially exempts from payment of ET on swimming and other sports activities organized by schools, colleges and gymnasiums, and is under Section 14 of the ET Act. It is argued that this notification, in differentiating between the same activities carried on in different places, is discriminatory. Polo Amusement contends that exempting one set of organizations such as schools, colleges and gymnasiums from carrying out the same activities, .....

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s next contended that the Club also has a pool, which according to the ET Department's notification of 30.06.1999 were tax-free as it was basically meant for swimming for all age-groups. The assessee further relies upon the view of the Law Department of GNCTD, noting that tax should be collected "uniformly from all the organizers and clubs/hotels etc. We are required to maintain uniformity in our actions." This opinion was even considered by the FC in the order, dated 04.02.2002. B .....

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012 is challenged. W.P.(C) 2450/2013 challenges an identical levy - the Recovery Notice dated 18.02.2013 for the said relevant period 2011-12 and seeks to recover ₹ 4,34,65,938/-. W.P.(C) 2451/2013 questions the Recovery Notice for the relevant period 2007 to 31.03.2008 at ₹ 5,78,69,677/- and in W.P.(C) 2425/2013, the challenge is on identical grounds - the Recovery Certificate dated 18.02.2013 for ₹ 4,98,91,398/- for the assessment period 2010-2011. Common contentions of Polo .....

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participant in the activities offered, it cannot be said that he has attempted to an entertainment for the simple reason that the premises and the entertainment have to be different from the spectator. In the context of swimming or water sports, it is submitted that the expression held in the context of entertainment has two meanings. Polo Amusement does not hold entertainment as understood either logically or legally. "Amusing onself", urges counsel, does not amount to being entertai .....

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e pool is entering a place where entertainment is being held." 14. The assessee s interpretation is supported by the expression "payment for admission" under Section 2(m)(iv) which includes "any payment for any purpose whatsoever connected with entertainment" which a person is required to make: "as a condition of attending or continuing to attend the entertainment either in addition to the payment, if any, for admission to the entertainment or without any such payme .....

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nt other than someone participating in it is of the essence to the entertainment. Thus, swimmers who are given entry to the facility do not participate in amusing or entertainment held or organized by the management. 15. Learned counsel relies upon the decision reported as State of Maharashtra v. Indian Hotel and Restaurants Association 2013 (8) SCC 519 and states that the basic activity which the club undertakes, i.e. granting access to swimming and that merely because these activities include .....

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In these circumstances, the point of distinction between the two was lost. Lastly, it is argued that the appellate authority in the order of 20.02.2001 fell into error in enhancing the tax payment on Polo without an appeal on the part of the ET department against the order dated 12.11.1999. Reliance is placed on the decisions of the Supreme Court in State of Kerala v. Vijaya Stores 1978 (4) SCC 41 and ICICI Bank v. Ahmedabad Manufacturing Calico Printing Ltd. 2004 (9) SCC 747. 16. In its writ pe .....

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such notification did not arise. It was argued that on the strength of the decision in Union of India v. Kamlakshi Finance Corporation 1992 Supp. (1) SCC 443 that having found that once the FC determined that the activities in the Polo Amusement were not liable to ET, the Govt. of NCT, issued a Notification illegally. In the absence of a stay or eventual setting-aside of the FC's order, in fact, no tax could be levied for the intervening period. It is argued next that the notification and th .....

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n any case, for the period the matter remained pending final decision [in the GNCTD's petition, W.P.(C) 1896/2002], recovering any amounts towards tax liabilities of the assessee would not be justified. Reliance is placed upon the decision ESI Corporation v. Hyderabad Race Club 2004 (6) SCC 191. 17. It is argued furthermore that the orders of assessment made are not based on any rational grounds since there is no material to substantiate the ad hoc determination that four tickets were issued .....

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that the FC fell into grave error in re-appreciation of factual material. It is argued that a combined reading of Section 2(a), Section 2(l) and Section 2(m) of the ET Act clearly discloses that the artificial distinction sought to be made between the participants and spectator in the context of the amusement offered or in question is highly artificial and not borne out. Reliance is placed on the judgment of the Supreme Court in M/s. Geeta Enterprises and Ors. v. State of UP and Others 1983 (4) .....

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or any other place where members of the public are invited or 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, involves a little skill. 3. that even if admission to the hall may be free but if the exhibitor derives some benefit in terms .....

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Court approved the view that games, which require skill and precision where the participants also derive amusement and enjoyment and further, provided by the organizer or event owner. Similarly amusement too but not to the same degree would amount to entertainment. The Supreme Court also approved the decision of the Madhya Pradesh High Court in Harris Wilson v. State of Madhya Pradesh AIR 1982 MP 171. It was argued that the FC completely overlooked the factual findings of the appellate authority .....

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04 (77) DRJ 274 which interpreted Section 2(3) of the U.P. Entertainment and Betting Tax Act, 1937 as applicable to Delhi. The Court had applied the law in Geeta Enterprises (supra) and in the context of another participating/activity, which involved both active and passive participation of the person seeking amusement, i.e. entry into a discotheque. It is submitted that the said judgment is conclusive on the issue that the entertainment or amusement activity has to be such that the spectator do .....

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during pendency of W.P.(C) 1896/2002 remained a subject matter of scrutiny by the Court, so far as the issue was concerned, it was open to the GNCTD to exercise its sovereign powers which in no way were impeded. The power to classify exemptions under Section 14 was not suspended or stayed and was exercised justly by issuing the notification dated 07.06.2007. 22. Learned counsel argued that there is justification for differentiating between "commercial establishments" such as the Fun Vi .....

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e allowed access to in the Fun Village, i.e. different kinds of pools, which did not involve any swimming skills at all, the classification between swimming activities and amusement and fun parks was entirely well-founded. 23. It is argued that in matters of tax and levy of duties, the State has wider latitude in classifying goods, services, activities and articles as compared with activities that fatally affect the fundamental rights of individuals. Learned counsel argued that sporting activiti .....

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ly. 24. It is argued that once it is held that availing facilities in the Fun Village and the Club of Polo Amusement amounts to entertainment within the term defined under the ET Act, the question of waiving any penalty or interest would not arise. The management deliberately chose not to collect any amounts from the guests who availed of its facilities and cannot now complain that it is not liable. Analysis and Findings 25. The two points which require to be decided in this case are whether the .....

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***** **************** Section 2(i) - "entertainment means an exhibition, performance, amusement, game, sport or race (including horse race) or in the case of cinematograph exhibitions, cover exhibition or news-reels, documentaries, cartoons, advertisement shorts or slides, whether before or during the exhibition of a feature film or separately, and also includes entertainment through cable service;" ***************** **************** "Section 2(m) -"payment for admission inc .....

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ertainment, 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, if any, for admission to the entertainment or without any such payment for admission; (v) any payment made by a person who having been admitted to one part of a place of entertainment is subsequently admitted to another part thereof, for admission to which a payment involving tax or more tax is required; Explanation: Any subscriptio .....

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entertainment to which Section 7 applies, an entertainment tax at such rate not exceeding one hundred per cent of each such payment as the government may from time to time notify in this behalf, and the tax shall be collected by the proprietor from the person making the payment for admission and paid to the government in the manner prescribed. (2) Nothing in sub-section (1) shall preclude the government from notifying different rates of entertainment tax for different classes of entertainment o .....

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ed tax shall also be collected by the proprietor and paid to the government in the manner prescribed. (4) If in any entertainment, referred to in sub-section (1), to which admission is generally on payment, any person is admitted free of charge or on a concessional rate, the same amount of tax shall be payable as if such person was admitted on full payment. (5) Where the admission to a place of entertainment is generally on payment, and if any entertainment is held in lieu of the regular enterta .....

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ription, contribution, donation or otherwise, the tax shall be paid on the amount of such lump sum and on the amount of payment for admission, if any made otherwise. (7) Where in a hotel or a restaurant, or a club, entertainment is provided by way of cabarets, floor shows, or entertainment is organized on special occasions along with any meal or refreshment with a view to attract customers, the same shall be taxed at a rate to be notified under sub-section (1)." ***************** ********** .....

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other officer authorised by the government in this behalf, may after giving reasonable opportunity of hearing to the proprietor, prohibit the holding of such entertainment and may also take all reasonable steps to ensure that order of prohibition is complied with, if he is satisfied that- (a) the proprietor has given any false information which is likely to result in the evasion of tax; (b)the proprietor has failed to deposit the security due; (c) the proprietor has committed breach of any of th .....

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rejudice to the generality of the provisions of sub-section (1) where the government is satisfied that any entertainment,- (a) is wholly of an educational character; or (b) is provided partly for educational or partly for scientific purposes by a society not conducted or established for profit; or (c) is provided by a society not conducted for profit and established solely for the purpose of promoting public health or the interests of agriculture, or a manufacturing industry; and consists solely .....

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cel such exemption if it is satisfied that the exemption was obtained through fraud or misrepresentation, or that the proprietor of such entertainment has failed to comply with any of the terms or conditions imposed or directions issued in this behalf and thereafter the proprietor shall be liable to pay the tax which would have been payable had not the entertainment been so exempted. (4) Where the government is satisfied that the entertainment programme is not conducted for profit and the entire .....

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b-section (4) the proprietor of such entertainment shall furnish to the Commissioner such documents and records and in such manner as may be prescribed. (6) If the proprietor of an entertainment exempted under sub-section (4) fails to furnish the documents and records required under sub-section (5), or fails to comply with any conditions imposed or directions issued in this behalf, or if the government is not satisfied with the correctness of such documents or records, the government may cancel .....

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entry to guests etc); deriving of amusement by the person seeking it- whether by sport, performance or other entertainment; deriving of profit (i.e commercial element) to the provider of entertainment and the irrelevance of whether actual amusement is derived from the particular given form of entertainment, is all embracing. The statute in this case clearly states that entertainment is exhibition, performance, amusement, game, sport or race (including horse race).. (Section 2 (i)). Admission to .....

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er's premises. Section 2 (m)(iv), in effect, is that payment should be connected with an entertainment; the nomenclature of the payment is irrelevant. The only condition is that the payment should be connected with the entertainment, which are water sport activities in the present case. The added condition is that the payment should be one that an individual has to make as a condition of attending the entertainment. This condition is satisfied in the case of all those entering inside the Pet .....

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on imposition of ET. The Court expressly rejected the submission. Furthermore, the decision in East India (supra) is conclusive that even where entertainment of a participant is involved, there is no question of the activity not being entertainment. In the sense understood by the legislature, the two terms entertainment and amusement are synonymous. The Concise Oxford English Dictionary defines the terms ''amusement", and ''amusement park" as follows:- ''Amuseme .....

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being entertained or amused by viewing a show, or participating in an activity, (like in Geeta Enterprises) the legislative intent was to treat both alike. Interestingly an argument similar to that of the petitioner/Polo Amusement in this regard, was made, but rejected in Black Thunder Theme Park Private vs State Of Tamil Nadu (WP 1614/1999 and connected cases, decided on 23.10.2008). The Madras High Court held as follows: By relying upon certain English decisions, it was sought to argue that th .....

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act, more or less a similar contention, which had been raised in respect of entertainment tax regarding cinemas, was repelled by the Supreme Court Y.V. Srinivasamurthy & Ors v The State of Mysore & Anr reported in AIR 1959 SC 894. Para 3 of the said judgment may be usefully extracted below:- ''3. It is only necessary here to refer to an additional argument that was advanced by learned counsel for the appellants before us in support of his contention. He drew our attention to Entr .....

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unsel concludes that law made with respect to Entry 62 cannot permit imposition of taxes on cinemas, for the word _cinemas_ mentioned in Entry 33 has been omitted from Entry 62. We do not thick there is any substance in this argument. Learned counsel agrees that the words _entertainments_ and _amusements_ are wide enough to include theatres, dramatic performances, cinemas, sports and the like. If his argument is correct, then, on a parity of reasoning, the State Legislature will have no competen .....

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961 Madhya Pradesh 257 has dealt with the issue in some detail. The passage found in para 6 may be usefully extracted below:- ''6. The natural import of the term 'entertainment' is amusement and gratification of some sort. The term connotes something in the nature of an organised entertainment. This is evident from the fact that the Act was enacted to provide for the levy of a duty in respect of admission to theatres, cinemas and other places of public entertainment. Therefore, a .....

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ng dance bars was irrational. This Court finds that the judgment has no relevance to the context here; the Court there was of opinion that an improper distinction on grounds of classes of establishments or classes of persons, who frequent the establishment had been made by the State, which was discriminatory and that there was no rationale to justify the conclusion that a dance that leads to depravity in one place would get converted into an acceptable performance by a mere change of venue. The .....

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lgarity and depravity are limited to the lower classes. 30. It is consequently held that there is no merit in the petitioners argument that participation in the activities provided by Polo Amusement to its subscribers guest, i.e. Sea Wave, Lazy River, Fun Slide, Kiddies Pool, Aqua Shute, Aqua Ball, Super slide, are not covered within the definition entertainment or that its facilities do not constitute places of entertainment, for the entry of which the amounts collected are liable to ET. 31. Th .....

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e money received for any determination of ticket.. and directed that Entertainment Tax is levied on the facility @ 20% of the gross proceeding of gate money to ₹ 1,46,090/- . The officer also levied interest under Section 40 @ for one month and 24% p.a. for following months on the amount of the tax. He estimated the receipts on an average receipts on reasonable estimate by way of fixing the payment liability for the total amount of tax at the mind point of the liable period in the year of .....

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he taxability during the year 1998-99 the receipts from the charges collected from the visitors to the Village Club have been reflected by the Appellant in their audited statement in Schedule 8 of Sales and Incidental Revenue and the said receipts are reflected in the form of membership fee and maintenance charges from guests. The membership fee in the audited statement of the year 1998-99 is reflected as ₹ 24,38,300/- while maintenance charges from guests are to the tune of ₹ 76,32, .....

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owever, that power-to modify or revise any assessment or demand can be invoked only if a separate show cause notice is issued, by virtue of proviso to Section 42 of the ET Act. That apart, the Deputy Commissioner could not have enlarged the scope of the proceedings before him, which was an appeal from the decision seeking to recover a much smaller amount. In this respect the submission of the petitioner and its reliance on State of Kerala v. Vijaya Stores is well founded. 33. The next question i .....

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by the petitioner, and its Fun Club. The Court finds this argument insubstantial. It is firstly well settled that in economic and fiscal matters, the legislative judgment is given greater deference than in areas where fundamental liberties are involved. This was spelt out in R.K. Garg v Union of India 1981 (4) SCC 675, in the following terms: ..another rule of equal importance is that laws relating to economic activities should be viewed with greater latitude than laws touching civil rights such .....

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ure. The court should feel more inclined to give judicial deference to legislature judgment in the field of economic regulation than in other areas where fundamental human rights are involved. This view had been earlier articulated in Murthy Match Works v Collector of Central Excise, 1974 (4) SCC 428, in the following terms: 19. It is well-established that the modern state, in exercising its sovereign power of taxation, has to deal with complex factors relating to the objects to be taxed, the qu .....

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ities involved in the formulation of a taxation policy. Taxation is not now a mere source of raising money to defray expenses of Government. It is a recognised fiscal tool to achieve fiscal and social objectives. The differentia of classification presupposes and proceeds on the premise that it distinguishes and keeps apart as a distinct class hotels with higher economic status reflected in one of the indicia of such economic superiority. 34. The Court also does not find any merit in the submissi .....

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r the other). The room tariff would then comprehend in sum, the value and cost charged for these services. Thus, to say that such establishments are privileged even while taxing fun park and services offered by the petitioner is unmerited. As far as swimming facilities offered for sports purposes go, the Court holds that the comparison is inapt. It can safely be said that there is State interest in promotion of sport for the promotion of sport besides in the larger interest of health of the user .....

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e to ET for the activities it offered in its club, to the guests of its subscribers. At the outset, the Court notices that the decision in Kamlakshi Finance Corporation (supra) is an authority for the proposition that a lower authority cannot challenge the correctness of a higher, quasi judicial appellate body before a Tribunal which has appellate oversight over the appellate body. There, the Assistant Commissioner had sought to appeal against the decision of the appellate authority which had se .....

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s, was spelt out in T.C. Basappa v T. Nagappa AIR 1954 SC 440, as one available in all appropriate cases and in appropriate manner, so long as we keep to the broad and fundamental principles that regulate the exercise of jurisdiction in the matter of granting such writs in English law. One of the fundamental principles in regard to the issuing of a writ of certiorari is, that the. writ can be of judicial acts. The expression " judicial acts " includes the exercise of quasi-judicial fun .....

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ince the vires of the provision enabling exemption was not in issue) forbearing the issuance of any exemption. The notification was in exercise of statutory power. Polo Amusement is here mixing two issues: the correctness of the decision of the FC on the one hand (which is the subject matter of the State s petition) and the vires of the notification. So long as the order of the FC stood - there is no dispute that Polo Amusement could not- in the absence of any decision in W.P.(C) 1896/2002, have .....

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425/2013, W.P.(C) 2450/2013 & W.P.(C) 2451/2013 preferred by Polo Amusement- in regard to the demands- are concerned, this Court is of the opinion that they were pursuant to the decision of the assessing authorities. These do not appear to have been based on detailed investigation of facts and record. There is some substance in the argument of Polo Amusement that assessment was made in respect of all days including holidays. To facilitate a better inquiry, the assessing authorities are direc .....

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