TMI Blog2021 (3) TMI 30X X X X Extracts X X X X X X X X Extracts X X X X ..... of proprietor (Lokeh). Thus, to ascertain the meaning and definition of proprietor, the Court needs to look into the definition clause contained in the Act of 1936 namely; Section 2(f). In the considered opinion of this Court, if present petitioner is covered by definition of 2(f), he can certainly claim the benefit of exemption. The reason for depriving the petitioner from the benefit of exemption is that in the exemption order, the name of M/s Satyam Cineplexes does not find place or the exemption certificate is not a certificate in favour of M/s Satyam Cineplexes Ltd. This finding is factually incorrect. The relevant portion of exemption order dated 16.03.2012 Annexure P/12 reproduced hereinabove leaves no room for any doubt that exemption was indeed issued in favour of M/s Satyam Cineplexes Ltd. Pertinently, the impugned order dated 05.05.2014 does not contain any opinion of the Commercial Tax Officer that petitioner being a lessee is not entitled to get exemption and such benefit is confined to proprietor/swami only. The only reason assigned is that the exemption notification/certificate was not issued in favour of M/s Satyam Cineplexes Ltd. This is trite law that va ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted 7/10/2008 (hereinafter called exemption notification ) (Annexure P/2). The said notification grants exemption for five years to multiplexes from the date of first exhibition of a movie subject to certain conditions mentioned therein. It is argued that said notification was issued in exercise of power conferred on the government u/S.7 of the M.P. Entertainment Duty and Advertisement Tax Act, 1936 (hereinafter referred to as the Act of 1936 ) which was repealed and replaced by the M.P. Vilasita, Manoranjan, Amod Evam Vigyapan Kar Adhiniyam, 2011 (Act of 2011) thereby exempting Integrated Family Entertainment Centres/multiplex complexes from payment of entertainment duty. Learned Senior Counsel for the petitioner submits that Sec.3 of the Repealed Act of 1936 is the charging Section whereas Section 7 gives power of general exemption. It is averred that petitioner established five cinema auditoriums at C-21 Mall, Indore and duly received registration certificate dated 24/11/2009 (Annexure P/3) under M.P. (Regulations) Act 1952 as a cinema operator by the competent authority. 6. The petitioner preferred an application dated 8/4/2010 (Annexure P/4) seeking entertainment tax exem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent of Commercial Tax, Government of M.P. 8. The Additional Chief Secretary aforesaid never issued any clarification and doubt so raised in the communication dated 5th August, 2013 (Annexure P/13) remained unanswered. 9. Shri Nema, learned Sr. Counsel submits that the application of petitioner seeking exemption dated 8/4/2010 shows that it was preferred on behalf of Satyam Cineplexes Limited and signed by its owner/Managing Director. A Divisional Level Committee which is much higher in status than the Commercial Tax Officer found the petitioner eligible for grant of entertainment tax exemption. The impugned order dated 5/5/2014 (Annexure P/14) came as a bolt from blue to the petitioner whereby entertainment tax exemption was declined on the ground that there exists no tax exemption certificate in the name of M/s. Satyam Cineplexes Limited TIN No.80949000242. Consequently, the tax, interest and penalty is decided to be imposed on the petitioner. 10. Learned Senior Counsel for the petitioner criticised the impugned order dated 5/5/2014 by contending (i) exemption notification is applicable qua entertainment and not owner Otherwise, the very purpose for which exempt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the language employed on the subject of covering letter dated 07/10/2008 wherein the Commercial Tax Department mentioned that the policy is meant for construction/establishment of multiplexes in the State of M.P. Shri Bhargav by taking this Court to Clause 1.5.1 of policy submits that applicant is entitled to get exemption from entertainment tax on constructing a multiplex. For the same purpose, reliance is placed on Clause 1.6, 1.6.2, and 1.6.4 of this policy. The owner is treated as applicant and lessee, by no stretch of imagination can get the benefit of exemption of entertainment tax. By placing heavy reliance on a Constitution Bench judgment in the matter of Commissioner of Customs (Import), Mumbai v. Dilip Kumar and Company Ors. reported in (2018) 9 SCC Page 1 , Shri Bhargav urged that an exemption Notification should be interpreted strictly. It is for the assessee to show that his case comes within the parameters of exemption clause/exemption notification. If there exists an ambiguity in exemption notification, it must be subject to strict interpretation. The benefit of ambiguity cannot be claimed by the subject/assessee and it must be interpreted in favour of reve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... relevant provisions read as under: 2(f) proprietor in relation to any entertainment, includes any person responsible for or for the time being incharge of the management thereof; 3 Entertainment Duty payable by proprietor of an entertainment.- (1) Every proprietor of an entertainment other than proprietor of an entertainment by Video Cassette Recorder (hereinafter referred to as V.C.R.) or Video Cassette Player (hereinafter referred to as V.C.P.) or a Cable Operator, shall in respect of every payment for admission to the entertainment pay to the State Government a duty at the rate (as prescribed by the State Government not exceeding seventy five per centum thereof:) (2) They duty payable under sub -section (1) shall be paid to or collected or released by such officer or authority and in such manner as ma y be prescribed. (3) Where the payment for admission to an entertainment is made by means of a lump sum paid as a subscription or contribution to any person, or for a season ticket or for the right of admission to a series of entertainments or to any entertainment during a certain period of time, or for any privilege, right, facility or thing combined with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roprietor, the Court needs to look into the definition clause contained in the Act of 1936 namely; Section 2(f), reproduced hereinabove. In the considered opinion of this Court, if present petitioner is covered by definition of 2(f), he can certainly claim the benefit of exemption. This will not be out of place to mention here that in the Act of 1936 (Hindi version), the proprietor is defined as Swami . The relevant portion reads as under: (Emphasis Supplied) This will not be out of place to mention here that after enactment of M.P. Official Language Act, 1957, the Hindi version published must be relied upon in case of any doubt. In the present case, although there exits no doubt, the Hindi version of (Proprietor) makes it further clear that the Legislative intent was to treat the proprietor as Swami . A Full Bench of this Court in Mangilal vs. Board of Revenue, 1983 MPLJ FB 254 took the said view regarding prevailing of Hindi version in case of doubt. Same principle is followed in 2018 (3) MPLJ 588 (C.M.O. vs. Hindustan Copper Ltd.). 18. The definition of proprietor became subject matter of consideration in 1980 MPLJ 221 (State of M.P. vs Narendrasing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Act, Regulations made under the Act, etc. (4) Administrative orders or Executive Instructions without any statutory backing. See 2006 (12) SCC 583 (Ispat Industries Ltd. vs. Commissioner of Customs). This is equally settled that if there exists any conflict between the provisions of the Act and the provisions of Rules or Executive Instructions, the former will prevail. In the instant case, in absence of any definition of proprietor/swami in the executive instructions/policy, the definition must be traced from the main enactment. Even if there would have been a definition of Swami in the Executive Instructions, the same was required to be read as per the definition given in the Parent Act of 1936. No Executive Instructions can prevail or assign a different meaning than the meaning provided in the Parent Act. Thus, we respectfully agree with the view taken by the CG High Court in the case of M/s PVR Ltd.(supra). 23. The Apex Court in Mysore Mineral Ltd.(supra) considered the term owned occurring in Section 32 of the IT Act, 1961 and held that it must be given a wider meaning. Any one in possession of property in his own title exercising such dominion ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the recommendations and the consequential order dated 16.03.2012 (Annexure P/12) makes it crystal clear that the exemption was decided to be given to Satyam Cineplexes Ltd. Putting it differently, the exemption order specifically contains the name of Cineplex i.e. Satyam Cineplexes in whose favour the decision to grant exemption was taken. 25. The matter may be viewed from another angle. In the impugned order dated 05.05.2014, the reason for not giving benefit of exemption is mentioned as under: (Emphasis Supplied) The reason for depriving the petitioner from the benefit of exemption is that in the exemption order, the name of M/s Satyam Cineplexes does not find place or the exemption certificate is not a certificate in favour of M/s Satyam Cineplexes Ltd. This finding, in our view, is factually incorrect. The relevant portion of exemption order dated 16.03.2012 Annexure P/12 reproduced hereinabove leaves no room for any doubt that exemption was indeed issued in favour of M/s Satyam Cineplexes Ltd. Pertinently, the impugned order dated 05.05.2014 does not contain any opinion of the Commercial Tax Officer that petitioner being a lessee is not entitled to get exemp ..... X X X X Extracts X X X X X X X X Extracts X X X X
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