TMI Blog1966 (11) TMI 92X X X X Extracts X X X X X X X X Extracts X X X X ..... Pleader and K.L. Talsania, Addl. Govt. Pleader JUDGMENT P.N. Bhagwati, J. (1) A short question of considerable importance relating to the construction of the Bombay Entertainments Duty Act, 1923, arises in the present petitions. The petitions are twelve in number and the facts giving rise to the petitions are only the difference in the amounts of entertainments duty demanded by the Collector and the periods for which they are so demanded. It will, therefore, be sufficient to state the facts of petition No. 595 of 1962 in so far as they bear upon the question in controversy in the present petitions. The petitioners are proprietors of a Cinema Theatre in the town of Junagarh and they trues at the said theatre. Prior to 30th April 1960 the entertainments duty was charged by applying the statutory percentage to the total amount received by the petitioners from the cinema-goers both in respect of admission to the cinema theatre as also on account of entertainments duty. As a result of a circular issued by the Collector was levied from and after 30th April 1960 by applying the statutory percentage only to the amount received by the petitioners from the cinema-goers for adm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ers was admittedly an entertainment within the meaning of this definition. Section 2 clause (b) gives an inclusive definition of payment for admission in the following terms:- (b) 'Payment for admission includes- (i) 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 duty or Proprietor more duty is required. (ii) any payment for seats or other accommodation in a place of entertainment, (iii) any payment for a programmed of synopsis of an entertainment, (iii-a) any payment made for the loan or use of 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: and (iv) 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 entertainments; Properietor in relation to any entertainment is defined in Secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... use and the holder of such ticket shall or deemed to have been admitted for payment for the purposes of the Act. The method of levying the entertainments duty is prescribed by Section 4 and that section provides. 4 (1) Save as otherwise provided by this Act, no person other than a person who has to perform some duty in connection with him by any law, shall be admitted to any entertainment, except, with a ticked stamped with an impressed embossed, issued by the State Government for the purposes of revenue and denoting that the proper entertainments duty has been paid. (2) The State Government may, on the application of a proprietor of any entertainment in respect of which the entertainment duty is payable under section 3, allow the proprietor on such conditions as the State Government may prescribe to pay the amount of the duty due- (a) by a consolidated payment of a percentage, to be fixed by the State Government, of the gross sum received by the proprietor on account of payments for admission to the entertainment and on account of the duty; (b) In accordance with returns of the payments for admission to the entertainment and on account of the duty; (C) in accorda ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssion and did not intend that any payment for admission should be left out from the charge of the duty. But that raises the question; what is included within the connotation of the expression payment for admission ? Payment for admission is defined in Section 2(b) but that is an inclusive definition and what is set out in the inclusive clause cannot prevent the expression receiving its ordinary popular and natural sense wherever that would be properly applicable. The inclusive definition is given for the purpose of enlarging and not restricting the meaning of payment for admission and that which, independently of the inclusive definition, in ordinary language, would properly be regarded as payment for admission does not cease to be so because it does not fall within the inclusive clause. It is, therefore, necessary to understand what the expression payment for admission means according to the plain natural connotation realised from the purchaser on account of the entertainments duty? Now there is no doubt that where the proprietor charges to the purchaser an amount on account of the entertainments duty, the purchaser is required to pay such amount to the proprietor for the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for admission in the one case, it must be payment for admission in the other. (4) There is also considerable inherent evidence in the Act to support this view. If payment for admission does not include payment of an amount separately charged by the proprietor on account of entertainments duty, there is no reason why the Legislature should have used the expression ... payment excluding the amount of the duty in section 3 as it stood prior to its amendment by Bombay Act 53 of 1956. The expression ....payment excluding the amount of the duty clearly postulates that the payment for admission would include the amount of the duty and, therefore, for the purpose of applying the statutory percentage as provided in section 3. The payment to be taken into account should be the payment excluding the amount of the duty. The Legislature contemplated that the proprietor would try to pass on the burden of entertainments duty to the purchaser and the price for admission charged by him would to that extent be enhanced and the Legislature, therefore, provided that the entertainments duty should be computed by applying the statutory percentage to the price of admission after excluding the pric ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ietor. The proprietor, according to him, is, in such a case, merely an abetments duty from the purchase by sale of the stamp to be affixed to the ticked issued for admission to the entertainment. The argument was rested primarily on the construction of Section 4(1) but support for it was also sought to be drawn form some of was also sought to be drawn from some of the rules, particularly rules 3,4 and 13. It is, therefore, necessary to consider the true meaning and effect of section 4 (1) and the relevant rules dealing with payment of duty by stamps. (6) Before, however, we do so, it is necessary to make a few general observations which are helpful in the determinations of the question before us. The entertainments duty which is levied by the Act is a duty on entertainments and it is, therefore, reasonable to assume, unless of course there is any provision in the Act Which militates against such assumption, that the incidence of entertainments duty must be intended to fall on tehperson responsible entertainment Moreover, even the requirement of convenience would suggest that the incidence of the duty would be intended by the legislature to fall on the Proprietor who would be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or to adopt the method of payment of entertainments duty set out in that sub-section in place of the method set out in section 4(1) if the State Government ment permits him to do so on an application made by him in that behalf and this provision clearly shows that the liability to pay entertainments duty, whether by the method set out in section 4(1) or by the method set our in section 4 (2), is that of the proprietor. The provision enacted in section 4 (2) that the State Government may on the application of the proprietor allow him to pay the amount of the duty in one of the three ways specified in the sub-section would be liable to pay the amount of the duty by following the method set out in section 4(1) but be may be allowed by him to pay the duty according to the method cant to note that if the proprietor admits any person to entertainment without a stamped ticket, that ie. Without payment of entertainments duty, it is the proprietor and not the purchaser who is made liable for an offence and who is declared to be liable to pay the duty which should have been paid by stamping the ticked. (Vide Section 5). This provision clearly emphasises that the liability to pay the entertai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e rules relied upon by the petitioners do not support the construction contended for by them and the rules read as a whole clearly them and the rules read as a whole clearly bear out the view which we are taking but bear out the view which we are taking but bear out the view which we are taking but even if the rules purported to throw he incidence of duty on the purchaser and constituted the proprietor agent of the state for the purpose of recovering entertainments duty from the purchaser, they cannot affect the construction of the provisions of the Act and in case of conflict between the Act and the Rules, we must give effect to the Act and ignore the rules But, as pointed out by us above, the rules confirm the view as to the construction of the Act and Rules. We must give effect to the Act and ignore the rules But, as pointed out by us above, the rules confirm the view as to the construction of the Act which we have set out above. Rules 3 to 13 deal with payment of duty by stamps and the procedure which is devised by these rules is that the stamps required for the purpose of the Act are to be purchased by the proprietor from the prescribed officer and proprietor has to affix on t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... To take once again the illustration given above let us suppose that the composite price of admission charged by the proprietor is ₹ 1.20ps. On this price of admission he would have to affix stamp of the value of ticket stamped with a stamp of this denomination, can it be said that he purchases the payment for admission would be not ₹ 1.20 by is, 96 paise. But in that event the stamp affixable by the proprietor would be for entertainments duty payable on 96 paise and not on Rel. on. . 1.20 ps. The only proper construction of the rules in the context of the provisions of the Act therefore seems to be that the proprietor is required to affix on the ticket stamp of the value of the entertainments duty payable on the price of admission and the price of admission may be a composite amount or it may be an amount charged specifically for admission plus an amount on account of entertainments duty. The proprietor in either case pays the entertainments duty by defacing the stamp at the time of issuing the ticket to the purchaser (9) the petitioners, however, relied on Rules 3, 5 and 13 they urged that these rules show that when the stamp is affixed to the ticket and the ticket ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
