TMI Blog1984 (6) TMI 15X X X X Extracts X X X X X X X X Extracts X X X X ..... ment is wholly unwarranted and unauthorised and the consequent issuance of the memorandum by the Commercial Tax Officer, Amusement Tax Section, Government of West Bengal, dated April 7, 1984, is bad in law as well as in the facts and circumstances of the instant case. Before adverting to the rival contentions, it would be worthwhile to refer to some of the provisions of the Act of 1922 and the notifications issued by the State Government prior to the enactment of the Amending Acts of 1981 and 1984. Section 2(4) defines entertainment and includes any exhibition, performance, amusement, game or sport to which persons are admitted for payment. Section 2(4)(a) deals with entertainment tax and meant a tax levied under S. 3. Section 3 of the said Act of 1922 provided that there shall be charged, levied and paid to the State Government a tax on all payments for admission to any entertainment. Section 3 provides the rate of taxation at the graduated scale. Section 8, prior to its amendment, provided as follows: 8. (1) (a) The entertainment tax (and the show tax) shall not be charged on payment for admission to any entertainment where the (State Government) is satisfied (a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rovided further that no entertainment tax would be charged, levied or paid in respect of the performance organised by a group theatre, amateur theatre or amateur jatra, subject to the condition that organisers of such entertainment obtaining necessary certificate from the appropriate authority declaring them as bona fide group theatre, amateur theatre or amateur jatra. Explanation to the notification, provided, however, that the group theatre or amateur theatre or amateur jatra would mean a registered or unregistered society of a group of persons formed exclusively for the purpose of cultural activities and not for monetary gains by engaging artists, who are not paid in regular or contractual fees. Appropriate authority under the said explanation meant Department of Information and Cultural Affairs, Government of West Bengal who would issue certificates to be renewed every three years. A professional theatre or professional jatra meant any theatre for histrionic purposes including musical recital organisation by a proprietary or partnership concern or public limited concern or any appropriate or lessee of a public show house engaging artists on payment of regular or contractual fee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... year on the basis of papers and returns as may be required by that department from time to time. (c) ` Professional Theatre' or ' Professional jatra' means any theatrical or histrionic performance including musical recitals organised by a proprietary or partnership concern or public limited company or any proprietor or lessee of a public show house, engaging artists on payment of regular or contractual fees." Mr. Panja in support of his contention submitted that the requirements for the grant of exemption under s. 8 is only social, educational or scientific and if that requirement is fulfilled, one is entitled to the grant of exemption, subject, however, to conditions which may be imposed by executive action. The power to grant exemption is circumscribed by S. 8 of the Act. There cannot be any differentiation between entertainments which are admittedly for social, educational or scientific purposes. These entertainments form a class by themselves and further dissection is not permissible. The concept of monetary gain or engagement of artists on regular or contractual basis cannot be the decisive test for the purpose of forming a separate class or a distinct entity and the exe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons find expression at a very high level and as such are meant mostly for the sophisticated and intellectual class. In contradistinction with the aforesaid, professional theatres, however, though aim at the same social reformation, present their productions for the common man. The small percentage of people that derive entertainment from out of the group theatre cannot even be compared with that from professional entertainment. The fact that group theatres are facing tremendous financial crisis even with Government grants as submitted by Mr. Gooptu corroborates such a situation. It is in this background, classification by the executive authority under S. 8 is to be considered. It is now taken to be well settled that classification must not be arbitrary but must be rational, that is to say it must not only be based on some qualities or characteristics which are to be found in all the persons grouped together and not :in others, who are left out, but those qualities or characteristics must have a reasonable relation to the object of the legislation. In order to pass the test, two conditions must be fulfilled, namely, (a) that the classification must be founded on an intelligible d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en subjected to excise duty at the same onerous rate as has been applied to the larger producers, observed : " It is true that a State may classify persons and objects for the purpose of legislation and pass laws for the purpose of obtaining revenue or other objects. Every differentiation is not a discrimination. But classification can be sustained only if it is founded on pertinent and real differences as distinguished from irrelevant and artificial ones. The constitutional standard by which the sufficiency of the differentia which form a valid basis for classification may be measured, has been repeatedly stated by the courts. If it rests on a difference which bears a fair and just relation to the object for which it is proposed, it is constitutional." This decision also is not of any assistance to Mr. Gooptu. Section 8 of the Bengal Amusements Tax Act,. 1922, as amended by the West Bengal Taxation Laws (Amendment) Act, 1981, authorises the State Government to exempt entertainment by general. or special order from payment of entertainment taxes, show taxes, surcharges or additional surcharges. The power to exempt is to be exercised by the State Government in the event, howev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e legislation because every presumption is in favour of the validity of the Act of the Legislature until the same is beyond any rational doubt. The Legislature is supposed to know the wishes and the needs of the people and the law-makers are supposed to reflect the intention of the people. It is also said that our law-makers are in possession of facts upon which the legislation is based while the courts are not. But if a statute or an act of the State be opposed to the Constitution, the court has no choice but to say so. In that view of the matter, we are of the opinion that the notification dated March 31, 1984, being No. 1042-F.T. contravenes the constitutional safeguards under article 13 of the Constitution and as such the notification is unenforceable. The question in regard to the violation of article 19(1)(g) has not been seriously urged at the hearing and, as such, we need not express any opinion thereon. In the view we have taken as indicated above, we declare the notification dated March 31, 1984, being No. 1042-F.T., issued under S. 8 of the Bengal Amusements Tax Act, 1922, to be ultra vires and restrain the appellant by an order of injunction from. enforcing the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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