JUDGMENT :

1. Rule. Rule made returnable forthwith. With the consent of parties, heard finally.

2. By the present writ petition, the petitioner is challenging the orders passed by the respondent No. 3 – Collector, Parbhani dated 15.3.2017, which was confirmed by respondent No. 2 – Divisional Commissioner, Aurangabad vide order dated 31.7.2017.

3. Brief facts, leading to filing of the present writ petition can be summarised as under :-

The petitioner is running a cinema hall, now multiplex cinema at Sailu, District Parbhani in the name and style as Minakshi Chitra Mandir, Sailu. The petitioner has a license for running the said theater. The entire theater was renovated and as per the available scheme of the State Government, the petitioner had applied for exemption from the payment of entertainment tax.

4. The respondent No. 2 - Divisional Commissioner Aurangabad granted exemption to the petitioner from the payment of entertainment tax under the Maharashtra Entertainment Duty Act for the period of five years from 26.6.2014 to 15.6.2019. During the period of exemption of entertainment tax, inspection of the theater was conducted and the inspector found that the tickets had the caption ‘entertainment tax’ and an amount was collected from the customers towards ‘entertainment tax’ and accordingly, the petitioner was held liable for the payment of entertainment tax. Respondent No. 3 - Collector assessed the said tax to the tune of Rs.7,97,514/-. In addition to the same, the respondent No. 3 also imposed the penalty double the amount of liability and ordered to pay total amount of Rs.23,92,542/-. The said order came to be passed on 15.3.2017 by respondent No. 3.

5. The petitioner challenged the order passed by the respondent No. 3 – Collector before the respondent No. 2 – Divisional Commissioner, Aurangabad by filing appeal under section 10A of the Maharashtra Entertainment Duty Act, 1923. The respondent No. 2 dismissed the appeal filed by petitioner vide order dated 31.7.2017 by upholding the order passed by the respondent No. 3 – Collector.

6. It was held by the respondent No. 2 – Divisional Commissioner that although exemption on entertainment tax was granted to the petitioner, the ticket of the petitioner showed the amount towards the entertainment tax and the same was collected from the customers and therefore, the petitioner was duty bound to pay the same to the State Government. Being aggrieved by the aforesaid orders of respondent Nos. 2 and 3, the present writ petition is filed.

7. It is the contention of the petitioner that once the exemption is granted by invoking the provisions of section 9 (1) of the Maharashtra Entertainment Duty Act, the State is not entitled to recover it from the petitioner under section 3 of the said Act. The learned counsel for the petitioner submits that the ticket roles were approved from the competent authorities and therefore, the authorities are estopped from seeking deposit of the entertainment tax. The most important and primary contention of the petitioner is that once the exemption has been granted from entertainment tax, although the said tax was mentioned on the whole value of ticket, the respondent/State is not entitled to receive the entertainment tax and the entire amount collected as ticket price including the amount collected under the caption ‘entertainment tax’ from the customers, can lawfully be retained by the petitioner.

Consideration and Conclusion :-

8. This Court while issuing notice in the matter on 20.3.2019 has granted stay to the impugned orders on condition that the petitioner deposits an amount of Rs.7,97,514/- in this Court. While dealing with a similar case under the Maharashtra Entertainment Duty Act, in the case of State of Maharashtra Vs. Swanston Multiplex Conema (P.) Ltd. reported in (2009) 8 SCC 235, at para 14, 19 and 25, the Hon’ble Supreme Court has held as under :-

“14. Entertainment duty is a tax. Tax, as is well-known, is a compulsory exaction. There is, it is trite