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TMI Blog1984 (2) TMI 362X X X X Extracts X X X X X X X X Extracts X X X X ..... tainment business. The ordinance itself has come into force with effect from 1 ST. JAN A 1984 and it seeks to amend the provisions contained in the b Bombay entertainment duty act, 1923, hereinafter referred to as "the principal act. 2. The provision in the ordinance seek to make large scale amendments in the principal act and in particular Ss. 3 and 4 of the ordinance makes amendments in s. 3. Of the principal act. By the said amendment consolidated sum of money is being sought to be recovered from the petitioners in writ petition no.38 of 1984 by way of entertainment duty; by the same provision again certain amount by way of lump sum is also sought to be recovered from the petitioner in provisions in 240 of 1984. Details of the provisions in section 4 of the ordinance by which s. 3 of the principal act is amended will be mentioned [a] little later in this judgment. Before we do that it would be necessary to examine what the position was before the amendment. 3. Before the amendment, S. 3 of the Principal Act provided for the levy by the State Government on all payments "for admission to any entertainment a duty called entertainment on all payment for admission to any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncipal Act. 5. Now we turn to the provisions contained in the Ordinance which is Maharashtra Ordinance No.xxll of 1983. This Ordinance has been promulgated by the Governor of Maharashtra in exercise of the power vested in him under Art. 213 of the Constitution. It is referable to Item 62 in List II of the seventh Schedule of the constitution. It is so because the Ordinance purports to levy a tax on entertainment which is within the competence of the State Legisiature. One must therefore ,hnd out whether it is a tax on entertainment. It is valid if it is not a tax on entertainment, naturally it would not be valid. 6. As already mentioned above. By section 4 of the Ordinance S. 3 of the Principal Act is amended on a large scale. We have already noted earlier that sub-sec. [1] of s. 3 of the Principal Act envisaged two types of entertainment. One was entertainment as re-course mentioned in clause [a] thereof and the other was entertainment other than the one as race-course. This distinction has been maintained by the amendment that is made by the Section 4 of the Ordinance though, however, different rates for the same have been prescribed. By the Ordinance. However, three new types ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed on the gross collection capacity on the maximum number of shows per day which are permitted to be conducted under a permit issued by the prescribed officer on an application made by the proprietor to the prescribed officer in that behalf. "Gross collection capacity" itself has been explained to mean in relation to a touring cinema a sum equal to the aggregate of all payments for admission to a show if all the seats and accommodation available and provided for the audience in such cinema are occupied. A further provision has been made for the purpose of calculating the aggregate of all payment for admission for a month in two types of touring cinemas the details of which need not detain us. It is sufficient to note that in the case which is now introduced in clause [c] of S. 3[1] of the principal Act by the ordinance the basis of levy of entertainment duty is not payment for admission to the entertainment but gross collection capacity on the maximum number of shows which the owner of a touring cinema is permitted to conduct it is not even on the number of shows which he is actually able to conduct or actually conducts. Notional basis has been fixed. This basis is the g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Petition No.38 of 1984 which Mr. N.H.Gursahani, the learned Senior Advocate, appears for the petitioner in petition No. 240 of 1984. We have heard both the learned Advocates in support of the respective petitions. We will not refer to their arguments separately. We will refer to the arguments made by both of them. The first line of attack made by the petitioners on the new levy is that the entertainment tax as leviable under Section 3 of the principal Act can only be levied if there is a payment for admission to entertainment. The learned advocates have relied upon the opening words of S. 3[1] which are as follows;- There shall be levied and paid to the state Government on all payments for admission to any entertainment ......." These were the Ordinance. After the amendment S. 3[1] opens as follows;- There shall be levied and paid to the State Government on all payment for admission to any entertainment a duty c referred to as entertainment duty" ] at the following rate or consolidated sum of money or as the case may be lamp sum namely......' 13. It is the contention of the petitioners that the consolidated sum of money or lump sum which is sought to be recovered, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tertainment duty have been for the levy of entertainment duty have been adopted. We do not see why such different bases cannot be adopted for the levy of entertainment duty if the duty in substance is on entertainment. Neither the constitution nor any other provision of law prohibits the adoption of a basis other than the payment for admission to entertainment for levying entertainment duty. It is conceivable for example that entertainment duty could be levied on the number of shows held in a place of entertainment. It is, therefore not possible for ud to accept the contention urged on behalf of the petitioners that the provisions contained in clauses [c]and [d] of S. 3[1] as amended by the Ordinance are invalid on the ground that they do not adopt payments for admission to entertainment as the basis for levy of entertainment duty. 15. The second ground of attack on the said duty, however, is stronger and must be considered by, us in some details. It has been urged, and with sufficient justification in our opinion, that what is sought to be is not duty on entertainment. We have already noticed earlier the provisions contained in clauses [c] and [d] of Section 3[1] which relate to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... position to contend as it has been sought to be contended by the learned Advocate General appearing for the State, that by appropriate definition payment which are to be made by way of consolidated sum or by way of lump sum can be treated as payments for admission to entertainment. This argument of the learned Advocate General was also party in reply to the for at contention which had been raised on behalf of the first contention which has been mentioned, among other things, that payment for admission in relation to the levy of entertainment duty includes "any payment for the purposes of the said clause the expression expression "gross collection capacity" in relation to touring cinema means a sum equal to the aggregate of all the payment for admission to a show if all the seats and accommodation available are occupied . in other words if the payment for seats or other accommodation in a place of entertainment as mentioned in definition section then the gross collection collection capacity calculated on the basis of the number of seats in a cinema must be taken to be payment for admission. The question is whether what is sought to be levied under clauses [c] and [d] ..... X X X X Extracts X X X X X X X X Extracts X X X X
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