The charge for admission must be uniformly and mandatorily applicable to all attendees to constitute 'payment for admission' under the relevant legal provisions.

JUDGMENT :

K.R. SHRIRAM, J.

1. Petitioner No.1 (hereinafter referred to as “Petitioner”) conducts horse races in Mumbai and Pune under the license granted to it by respondent No.1, State of Maharashtra, under the Bombay Race Course Licensing Act, 1912.

2. Petitioner is a members club only. Petitioner, however, permits members as well as non-members, i.e., members of general public, to attend races held at its race courses on payment of entrance/admission fees. On such entrance/admission fees petitioner would collect entertainment duty and pay the same to respondents under the provisions of the Bombay Entertainments Duty Act, 1923 (hereinafter referred to as “the said Act”). By year 2002, when the petition came to be filed, and we would say much earlier, mobile phone became a common means of communication and many people started carrying and using mobile phones. For professionals and businessmen, it became indespensable and one may say an extension of their office. For several years, petitioner did not allow the use of mobile phones at race course during race days and “Off course racing”. But due to repeated requests from members and those non-members who were attending the races, petitioner decided to permit use of mobile phones at the race course. It was represented to petitioner that if use of mobile phones was permitted at the race courses, more people would be able to attend the races. This resulted in an increase in the collection of entertainment duty and the State stood to benefit. To restrict the nuisance being caused due to usage of mobile phone during the races, petitioner decided to levy a charge of Rs.1,000/-, later increased to Rs.1,200/-, for those who wanted to take their mobile phones inside the course during the races or for off-course racing. Those who wanted to take their mobile phone had to pay this charge, in addition to payment of entrance/admission fees. Those who did not have a mobile phone or who did not want to carry mobile phone did not have to pay any such charge. They could enter by paying only the entrance/admission fee. Therefore, as submitted by Mr. Mehta, it was not mandatory or a condition precedent for anyone to enter the race course or off course racing on race days.

3. Sometime in February 2001, there were enquiries made to petitioner by various quarters of the State on use of mobile phones during the races, primarily to investigate illegal betting which would result in loss of revenue to the State. Petitioner replied to the notices received. That was a separate issue.

4. On or about 02.01.2002, petitioner received a copy of a Government Resolution being G.R.No. BET-2001/P.K.23/T-1 dated 27.12.2001 informing them that the State has decided to levy entertainment duty on the use of the mobile phones at the race courses and off-course betting centers @ 50% under section 3(1)(a) and surcharge under Section 3AA on all sums charged for the use of mobile phones, with effect from 21.01.2001. Petitioner was directed to pay the amounts to Collector of Mumbai (respondent No. 4/5 herein). Despite petitioner’s reply showing cause as to why such entertainment duty on mobile phone charges should not be levied, petitioner received a communication dated 22.02.2002 from respondent No.4 - Collector of Mumbai demanding an aggregate sum of Rs.1,31,98,902/- as entertainment tax and surcharge on use of mobile phones for the period 21.01.2001 to 31.01.2002. Petitioner filed a reply to the show cause/demand notice as well as attended a personal hearing before respondent No.4. Respondent No. 4 passed orders dated 02.03.2002 and 22.03.2002 rejecting petitioner’s submissions and calling upon petitioner to pay a total sum of Rs.1,31,98,902/- towards entertainment tax and surcharge under Section 3(1)(a) of the said act.

5. Aggrieved by this order, petitioner filed an appeal under Section 10(A) of the said Act before the Commissioner of Konkan Division who is respondent No.6. The appeal came to be dismissed by an order dated 1