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2020 Supreme(SC) 174
SUPREME COURT OF INDIA
DEEPAK GUPTA, HEMANT GUPTA, JJ.
THE STATE OF MAHARASHTRA & ORS. – APPELLANT(S)
Versus
PAN INDIA PARYATAN LIMITED & ANR. – RESPONDENT(S)
CIVIL APPEAL NOS. 6438-6439 OF 2009
Decided on : 18-02-2020
For the Appellant(s) :Sachin Patil, Rahul Chitnis, Aaditya A. Pande, Geo Joseph, Advocates
For the Respondent(s):Abhinav Mukerji, Advocates
IMPORTANT POINT
Entertainment duty in terms of Section 3(5)(a) alone would be leviable on amusement park charging a lumpsum amount for admission and entertainment to the amusement park.
Headnote:
(a) Bombay Entertainments Duty Act, 1923 - Section 3(2) - Admission for all rides and games is not admission to series of entertainment - Thus writ petitioners do not fall in any of four categories of section 3(2) - Section 3(2) therefore not applicable - Consequently not entitled to rebate of 50% provided to specified category of persons in Section 3(2). (Para 17, 18)
(b) Bombay Entertainments Duty Act, 1923 - Section 3 - Section 3(5)(a) having overriding effect on sections 3(1)(b) and 3(2) - Therefore, no entertainment duty is payable for first three years - Duty for next three years leviable as per section 3(1)(b) which applies to writ petitioners - Writ petitioners firstly claiming benefit under Section 3(2) of the Act and then under Section 3(5)(a) - Not permissible - Instantly section 3(2) not applicable to writ petitioners - Therefore, entertainment duty in terms of Section 3(5)(a) alone would be leviable. (Para 19)
Facts of the case:
The writ petitioners own and run an amusement park within limits of Greater Bombay which was opened to the public for admission on 25th December, 1989. They charged a lumpsum amount for admission and entertainment to the amusement park. In terms of the Act, the writ petitioners were required to pay entertainment duty.
The State sought to recover the entertainment duty @7.5% in respect of entry to the amusement park for the period from 16th September, 1994 to 24th December, 1994 and @15% from 25th December, 1994. The writ petitioners paid the duty under protest. In a writ petition challenging the provisions of the Act, the writ petitioners sought refund of the duty paid.
The High Court held that the rate of tax payable by the respondents would be as follows:
i. For the first three years from date of commencement of park the Petitioners are not required to pay any duty, Duty for the 4th and 5th year, from the date of commencement, payable at the rate of 3.75%, applying concessional provision.
Duty payable during 6th year from the date of commencement of park and there onwards, at rate of 7.5%.
Finding of the Court:
Entertainment duty in terms of Section 3(5)(a) alone would be leviable on writ petitioners.
Result: Appeal allowed.
JUDGMENT:
Hemant Gupta, J.
The challenge in the present appeals is to an order passed by the Division Bench of the High Court of Judicature at Bombay on 19th December, 2006 whereby Sections 3(1)(b), 3(2) and subsections 5(a) and (b) of the Bombay Entertainments Duty Act, 1923[for short, 'Act'] were interpreted to hold that the rate of tax payable by the respondents[for short, 'writ petitioners'] would be as follows:
"i. For the first three years from date of commencement of park the Petitioners are not required to pay any duty,
ii. Duty for the 4th and 5th year, from the date of commencement, duty payable is at the rate of 3.75%, applying concessional provision.
iii. Duty payable during 6th year from the date of commencement of park and there onwards, is at rate of 7.5%."
2. The writ petitioners own and run an amusement park within limits of Greater Bombay which was opened to the public for admission on 25th December, 1989. They charged a lumpsum amount for admission and entertainment to the amusement park. In terms of the Act, the writ petitioners were required to pay entertainment duty.
3. In the writ petition before the High Court, the assertion of the writ petitioners was that on 4th October, 1994, it sought confirmation that entertainment tax to be levied would be 3.75% of the value of a consolidated ticket. Such stand was accepted by appellant No. 2-The Collector, Bombay Suburban District. Later, vide communication dated 7th January, 1995, the writ petitioners were informed that they would be required to pay duty @7.5% and not @3.75%. The writ petitioners challenged such demand by way of writ petition. The said writ petition was withdrawn with liberty to file a fresh petition.
4. The State sought to recover the entertainment duty @7.5% in respect of entry to the amusement park for the period from 16th September, 1994 to 24th December, 1994 and @15% from 25th December, 1994. The writ petitioners paid the duty under protest. In a writ petition challenging the provisions of the Act, the writ petitioners sought refund of the duty paid.
5. The High Court found that the following questions arose for consideration:
"i. Rate of entertainment duty payable by the Petitioners for a period from 16th September, 1994 to 24th December, 1994.
ii. Rate of duty payable for the period commencing 25th December, 1994.
iii. Whether action of Respondents in seeking to recover duty payable during 25th December, 1989 to 23rd August, 1990 already adjusted against refund payable to Petitioners, is justified and valid in law. This question is raised by Writ Petition No. 2009 of 1998."
6. Before we consider the respective arguments of the learned counsel for the parties, the statutory provisions of the Act need to be referred:
"2 (a-1). "amusement park" means a place wherein various types of amusements including games or rides or both but excluding exhibition by cinematograph and video exhibition are provided fairly on permanent basis, on payment for admission;
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2 (b) "payment for admission" in relation to the levy of entertainments duty, 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 more duty is required,
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(d) "admission to an entertainment", includes admission to any place in which the entertainment is held or any place where from the entertainment is provided by means of cable connection from any type of antenna with a cable network attached to it or cable television for Direct-to-Home (DTH) Broadcasting service;
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(f) "entertainment duty", or "duty" in respect of any entertainment means the entertainment duty levied under section 3;
3. Duty on payments for admission to entertainment. -
(1) There shall be levied and paid to the State Government on all payments for admission to any entertainment [except in the case of video games, exhibition by means of any type of antenna or cab
