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1982 (4) TMI 289 - GUJARAT HIGH COURT

1982 (4) TMI 289 - GUJARAT HIGH COURT - TMI - Dated:- 30-4-1982 - A Ahmadi, R Mankad, J. JUDGMENT A.M. Ahmadi, J. 1. Video game machines have been installed by the petitioners in their parlours run in different names, such as "Dizzyland", "Wonderland". etc. Admission to there parlours is unrestricted and free of cost. In other words, no fee is charged by the proprietors of the parlours for admission to the parlour. Video game machines have been installed in these parlours and .....

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yer is able to manipulate the lever or the push-buttons by sharp reflexes so as to beat the computer-mind, the human mind scores a point over the computer-mind and the player enjoys the thrill of having succeeded in scoring a point. That entitles the player to a second round till he loses to the computer mind in the combat. In other words, it depends on the intelligence and sharp reflexes of the player who operates the machine to score a point over the computer mind. The petitioners contend that .....

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inafter referred to as 'the Act') On receipt of these notices the petitioners showed cause pointing put (hat income from video machines installed in their parlours could not attract the provisions of Section 3 of the Act because no payment was charged for admission to the parlours or from the bystanders in the parlours while the machine was in use by one of the players who had dropped coins in the slot. The Mamlatdar (Entertainment Tax), Ahmedabad, however, came to the conclusion that th .....

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ers, feeling aggrieved by this order preferred the present writ petitions under Article 226 of the Constitution of India. 3. On behalf of the respondent Shri M.N. Buch, Competent Officer-cum-resident Deputy Collector has filed his affidavit-in-reply wherein he has pointed out that by reference to the definitions contained in Sections 2(a), 2(e) and 2(g)(v) of the Act that video games would fall within the meaning of a game or sport and since a price is recovered for operating the video machines .....

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the slot of the machine. It is pertinent to note that in the affidavit-in-reply reliance is not placed on Clause (iv) of Section 2(g) of the Act to which a reference is made by the Mamlatdar in his impugned order. Broadly speaking, the question which, therefore, arises fur our consideration is, whether coirs inserted in the slot of the video machines to enable the player to play the game tantamount to "payment for admission to entertainment"? 4. In order to understand the controversy .....

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are Entry 33 and Entry 62. Entry 33 deals with theatres and dramatic performances; cinemas subject to the provisions of Entry 60 of List 1; sports, entertainments and amusements. Entry 62 deals with taxes on luxuries, including taxes on entertainments, amusements, betting and gambling. The expressions "entertainment", "admission to an entertainment" and "payment for admission" have been defined as under by Section 2 of the Act: 2(e) 'entertainment' includes .....

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seats or other accommodation in a place of entertainment; (iii) any payment for a programme or synopsis of entertainment; (iv) any payment made for the loan or use or any instrument or contrivance which, enables a person to get a normal or better view or hearing of the entertainment which, without the aid of such instrument or contrivance, such person would not get: (v) any payment for any purpose whatsoever connected with an entertainment which a person is required to make as a condition of att .....

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39;tax' means an entertainment tax levied under Section 3 or Section 4 of the Act. That brings us to the charging Section (1)(a) which 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 rates enumerated in the sub-clauses immediately following. We are not concerned with Clause (b) of Sub-section (1) of Section 3 which refers to payment for admis .....

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tertainment free of any payment or at a reduced rate of payment for such admission. Section 7 next provides that where a tax under Section 3 or Section 4 is livable, in respect of the admission of a person to an entertainment, no person other than a person who has to perform any duty in connection with such entertainment shall be admitted to any entertainment. 5. While considering the scheme of the Bombay Entertainments Duty Act, 1923, which held the field before our Act came into force, a Divis .....

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the connotation of the expression 'payment for admission'? The Division Bench pointed out that the said expression as defined in Section 2(b) is an inclusive definition but that does not mean that the inclusive clause prevents the expression receiving its ordinary popular and natural meaning wherever properly so applicable. Now, it will be seen that the definitions given in Sections 2(a), 2(e) and 2(g) of the Act are inclusive definitions and the expressions so defined must, therefore, .....

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an High Court in paragraphs 5, 6 and 7 of the judgment in Maharaja of Jaipur Museum Trust v. State of Rajasthan (1972) Tax L.R. 2428 and we can do no better than reproduce the relevant paragraphs: '5. In order to have an accurate idea of the meaning of the word 'entertainment' in its ordinary and general acceptation, we may also refer to Butter worth's 'Words and Pareses', legally defined. There it bus been stated: 'an entertainment to come within the provisions of th .....

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f this word is 'a performance or a show intended to give pleasure'. 7. In Ananthakrishna Iyer's 'Law Terms and phrases', 'entertainment' has been stated-the natural import of the term is amusement and gratification of some sort. The term connotes something in the nature of an organized entertainment.' The emphasis evidently is upon some kind of organisation to provide amusement. It is, therefore, clear from the above definitions that 'entertainment' in com .....

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the nature of an organized entertainment. 6. Having ascertained the natural import of the term 'entertainment', we may now proceed to consider the relevant provisions of the Act referred to earlier. Now the expression 'entertainment' includes any exhibition, performance, amusement, game or sport to which persons are admitted for payment. The expression 'admission to an entertainment' includes admission to any place in which entertainment is "held. If we read the def .....

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with an entertainment which a person is required to make as a condition of attending or continuing to attend the entertainment. Section 3 levies tax on 'every payment for admission to an entertainment', that is, exhibition, performance, amusement, game or sport. In other words, the tax is on payment for admission to a game, not payment made for playing the game. The tax is on something which is, therefore, objective and not subjective. 7. Chagla C.J., in State of Bombay v. Chamarbaugwall .....

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y other mental or intellectual pleasure. The entertainment or amusement contemplated is something objective outside the person amused or entertained, and with regard to the tax on entertainment and amusement, the tax also is on the spectator who witnesses some amusement or entertainment. Therefore, although it may be said that a person who solves a crossword puzzle is amusing himself or entertaining himself, this is not the amusement which the Constitution contemplates in placing the topic of en .....

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the scope of entertainment remained untouched. 8. In Calico Mill's case (supra) the facts reveal that the petitioners, Calico Mills, had put up a canvas canopy known as "Cal cloth dome" for display and sale of its fabrics. Admission to the dome was unrestricted and free but during the evenings only bona fide purchasers who purchased token on payment of ₹ 2/- were admitted to the dome. This amount of ₹ 2/- was later adjusted towards the price of the fabric purchased by t .....

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ether entertainment duty could be levied on the sums collected by way of tokens under Section 3(1) of the C.P. and Barer Entertainments Duty Act, 1936 which defines the expressions 'entertainment', 'admission to entertainment', 'payment for admission' and 'proprietor' in the same language in which they have been defined in our Act. The learned Judges constituting the Division Bench after referring to the definitions of the aforesaid expression made the observation .....

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d a trust and founded a museum in a portion of the City Palace, Jaipur, for the benefit of the public. His Highness had a vast and valuable collection of various articles of historical, scientific, literary and archaeological interest and importance which came to his possession from several past generations. Relinquishing all his right, title and interest over the said articles, he handed them over for being placed in the museum founded for the benefit of the public and visitors who visited the .....

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t stated that the museum is not a place of entertainment where any performance is held it is a place of historical importance where persons of literary and artistic taste come to study the works of art. It appears that after the reply was sent by the trust, no action was taken for the levy and collection of entertainment duty for almost seven years. Thereafter a fresh show cause notice was issued and on the trust denying its liability to pay on the very same grounds as urged earlier, an order wa .....

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signed to the word 'entertainment' in the various books referred to above, and having regard to the preamble of the Act, we have no hesitation in coming to the conclusion that 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 subjec .....

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adjusted towards the eatables that were consumed. The price of eatables were not raised for the purpose of covering the entertainment, but whether a person consumed anything or not, he had to pay ₹ 5/- for the evening and ₹ 10/- for the night. A minimum fee was levied, for taking a seat for witnessing the show and for taking tea or dinner. It was in the background of these facts that the Supreme Court held that cabaret show is an item of entertainment and that of the normal rates we .....

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at admission to an entertainment' would include admission to any place in which entertainment is held and 'payment for admission' would include any payment for any purpose whatsoever, connected with an entertainment which a person is required to make as a condition for attending or continuing to attend the entertainment. 11. We may lastly refer to a decision of the Madhya Pradesh High Court is Harris Nelson v. State of M.P. (Miscellaneous Petition No. 567 of 1981 decided by a Divisio .....

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rmance is not entertainment provided by the petitioners. It is true that in the course of performance, a performer may also feel entertained but that is not what is contemplated by the charging section. To bring an activity of the proprietor within the net of the charging section, that activity by itself, without anything more, should be likely to amuse or entertain a person. 12. We are in respectful agreement with the aforesaid view expressed by the learned Judges of the Madhya Pradesh High Cou .....

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f a fixed amount. In the instant cases admittedly admission to the parlour is unrestricted and free and nothing is charged for staying in the parlour while some player is operating the Video game machine. The machine remains dumb even after the insertion of the coins till it is activated by the player by operating the lever on the push buttons meant for the purpose of playing the game offered by the machine. Obviously, therefore, there is no payment fur admission to an entertainment because none .....

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