TMI Blog2018 (5) TMI 2160X X X X Extracts X X X X X X X X Extracts X X X X ..... al ropeways in Himachal Pradesh without there being any provision of levying tax of the instant kind, whereas on the other hand, the Entertainments Duty Act was enacted to provide for levy on entertainment duty in respect of admission to public entertainments. The mere fact that no amendment was made in the Aerial Ropeway Act and the amendment was made in the Entertainments Duty Act is inconsequential as the entertainment duty in respect to admission to public entertainment could only be taxed under the Entertainments Duty Act, as such, we find it expressly difficult to agree with the view of the learned Single Judge of High Court of Uttrakhand, who only on the basis that no amendment had been carried in the United Provinces Aerial Act, 1922 had quashed the amendment. It is more than settled that as a general rule when two different words are used by a statute, prima facie one has to construe different words as carrying different meanings. Even though at sometime two different words are used in one and the same statute to convey the same but i.e. exception rather than the rule. The word entertainment has to be understood in the contest that was intended by the legislature w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ple by ropeway. It is claimed that this ropeway is not concerned with any activity directly or indirectly of entertainment and only transports the pilgrims from the base of mountain to its top so as to enable them to reach the sanctum sanctorum for paying obeisance at the Temple. This activity cannot be termed to be entertainment so as to bring it within the purview of Amendment Act, 1999. It is further contended that the State of Himachal Pradesh in fact has enacted the Himachal Pradesh Ropeway Aerial Act, 1968 (for short 'Ropeway Aerial Act, 1968) wherein there is no provision to levy any duty and, therefore, what cannot be done directly for want of any provision in the Ropeway Aerial Act, 1968, cannot be permitted to be done indirectly by making a provision in the Amendment Act, 1999. It is further alleged that as far as the entertainment duty is concerned, it is essential that the provider and the recipient of the entertainment should be ad idem where the provider shall provide and recipient shall be admitted to an entertainment. The entertainment and amusement as contemplated by Entry 33 of the List-II of Seventh Schedule of the Constitution of India with regard to regulat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve denied the averments made in the reply and reiterated those of the petition. Besides that the petitioners have annexed the copy of judgment rendered by the learned Single Judge of the Uttrakhand High Court in three connected petitions, lead case being petition No. 1031(M/S) of 2007, in support of their contention, wherein similar provision in the U.P. Entertainment and Betting Tax, 1979, as is applicable to the State of Uttrakhand, was struck down by the said Court for want of legislative competence of the State. 6. We have heard the learned counsel for the parties and have gone through the material placed on record. 7. In order to decide the controversy, we have to refer to certain provisions of the Entertainments Duty Act and Ropeway Aerial Act, 1968. 8. The word entertainment as originally defined in section 2(d) of the Himachal Pradesh Entertainments Duty Act, 1968, which reads as under: (d) entertainment includes any exhibition, performance, amusement, game, sport or race to which persons are ordinarily admitted on payment. However, the definition, as amended by the impugned amendment, now reads as under: 2(d) entertainment includes any exhibition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at which is costly or which is generally recognized as being beyond the necessary requirement of an average member of society, which activities alone can be the subject matter of tax under List-II Entry 62 and not goods or articles of luxury. 15. In the instant case the vires of an enactment of Entertainments Duty Act is impugned on the ground that the legislation has no power to enact such enactment. Therefore, in such circumstances, the Court is to consider the true nature and character of such an enactment with reference to the power of the State Legislature to enact such a law. While adjudging the vires of such an enactment, the Court must examine the whole enactment, its object, scope and effects of its provision. If on such adjudication it is found that the enactment falls substantially on a matter assigned to the State Legislature, in that event such an enactment must be held to be valid even though nomenclature of such an enactment shows that it is beyond the competence of the State Legislature. 16. In other words, where the levy is challenged, its validity has to be adjudicated with reference to the competence of the State legislation to enact such law and while doin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s was held by this Court in the case of Porritts and Spencer (Asia) Ltd., v. State of Haryana, (1979) 1 SCR 545: AIR 1979 SC 300). In Stroud's Judicial Dictionary (4th Edn: vol. 2, p. 916) the word 'entertainment' has been defined thus:- Entertainment ................. for a PUBLIC OR SPECIAL Occasion ........... is an entertainment in the sense of a gathering of persons for entertainment. Entertainment (Small Lotteries and Gaming Act 1956 (c. 45, Section 4(1)) included a tombola drive alone without accompanying festivities. The monologue or patter of a comedian, even if delivered at an entertainment provided by an institution whose activities are partly educational, was held to be a variety entertainment within the meaning of the Section. Similarly in Words and Phrases, Judicially Defined (Vol. 2, pp. 206-207) the word entertainment has been defined thus:- Entertainment is something connected with the enjoyment of refreshment-rooms, tables, and the like. It is something beyond refreshment; it is the accommodation provided, whether that includes a musical or other amusement or not. Similarly in Words and Phrases (Permanent Edn; Vol. 14A, A 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... person who pays for playing the games. That he would not pay money if it did not thrill, amuse, and entertain him, is obvious. Translated into actual practice, if the operators who are from the audience play the video for one hour the amount of money collected would be Rs. 60/- and if the video is played for 3-4 hours a day, the total amount comes to Rupees 180/-, 240/- per day which is doubtless a substantial amount for showing the video by way of an entertainment because when a number of people without any admission fee enter a hall for entertainment and enjoy the games it becomes a public show and the hall where the video is played becomes a public hall and amounts therefore to a public exhibition which is squarely covered by the first limb (exhibitional) of the definition of entertainment in sub-section (3) extracted above. 20. A tax under Entry 62 List II of the Seventh Schedule may be imposed not only on the person spending on entertainment but also on the act of a person entertaining or the subject of entertainment. It is well settled by now that such tax may be levied on the person offering or providing entertainment or the person enjoying it. (Ref: State of W.B. and oth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n amusement. The finding of learned Commissioner on this issue is totally perverse finding and the State Government instead of making amendment in the United Provinces Aerial Ropeways Act, 1922, issued the impugned notification in exercise of power under the U.P. Entertainment and Betting Tax Act, 1979 and added sub-clause (b) in clause-5 of impugned notification dated 6-9-2010, making a provision of 20% tax of each payment for admission over rope-ways. This notification dated 6-9-2010, was issued without legislative competence under the U.P. Entertainment and Betting Tax Act, 1979, and in any view of the matter, as discussed above, on the rope-way cannot be said to be amusement under the U.P. Entertainment and Betting Tax Act, 1979. Thus, for the discussion made in the foregoing paragraphs, it is quite clear that the State Government has no competence to impose entertainment tax on the ropeways installed at Chandi Devi and Mansa Devi Temples under the provision of Section 2(g) of U.P. Entertainment and Betting Tax Act, 1979 and the Notification dated 6-9-2010, so far as making provision of 20% tax of each payment for admission over ropeway, under sub clause (b) of clause 5 has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ay Act, the State by amending the Entertainments Duty Act can recover the same. 29. As observed by the Hon'ble Supreme Court, only Entries 45 to 66 of the Seventh Schedule are those that can be taxed. The Aerial ropeway Act was enacted to authorize, facilitate and regulate the construction and working of aerial ropeways in Himachal Pradesh without there being any provision of levying tax of the instant kind, whereas on the other hand, the Entertainments Duty Act was enacted to provide for levy on entertainment duty in respect of admission to public entertainments. 30. Therefore, the mere fact that no amendment was made in the Aerial Ropeway Act and the amendment was made in the Entertainments Duty Act is inconsequential as the entertainment duty in respect to admission to public entertainment could only be taxed under the Entertainments Duty Act, as such, we find it expressly difficult to agree with the view of the learned Single Judge of High Court of Uttrakhand, who only on the basis that no amendment had been carried in the United Provinces Aerial Act, 1922 had quashed the amendment. 31. At this stage, learned counsel for the petitioner would vehemently argue that a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ough doubted in its indiscriminate application in State of Bombay v. Hospital mazdoor Sabha : AIR 1960 SC 610. In the latter case this court was required to construe Section 2(j) of the Industrial Disputes Act which read: section 2(j) provides that 'industry' means any business, trade, undertaking, manufacture or calling of employers and includes any calling, service, employment handicraft or industrial occupation or avocation of workmen. 32. What is the principle ejusdem generis has recently been considered by a Coordinate Bench of this Court in CWP No. 265/2017 titled as Kuldeep and another vs. State of Himachal Pradesh and others, decided on 13.7.2017 and it was held as under: Ejusdem generis 4. Let us first understand what is this principle of ejusdem generis (noscitur a sociis), on which much emphasis has been laid down by the petitioners. Scanning through several decisions rendered by different Benches (Constitutional or otherwise, of the Supreme Court of India), over a period of time, one finds inter alia, the following principle to be laid down:- a) Application of maxim ejusdem generis, (noscitur a sociis) may be treacherous unless the societas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n intent that the general term be given a broader meaning than the doctrine requires. [Jage Ram and others vs. State of Haryana and others, (1971) 1 SCC 671 and Grasim Industries Ltd. vs. Collector of Customs, Bombay, (2002) 4 SCC 297]. h) If a list or string or family of genus describing terms are followed by wider or residuary or sweeping-up words, then the verbal context and the linguistic implications of the preceding words limit the scope of such words.[M/s. Siddeshwari Cotton Mills (P) Ltd. vs. Union of India and another, (1989) 2 SCC 458] i) The rule must be confined within narrow limits, and general or comprehensive words should receive their full and natural meaning unless they are clearly restrictive in their intendment. [State of Bombay vs. Ali Gulshan, (1955) 2 SCR 868]. j) The purpose of this doctrine is to reconcile any incompatibility between specific and general words so that all words in a Statute can be given effect and no word becomes superfluous. [Satchikitsa Prasark Mandal and others (supra)]. 33. It is more than settled that as a general rule when two different words are used by a statute, prima facie one has to construe different words as carrying ..... X X X X Extracts X X X X X X X X Extracts X X X X
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