M.R. Shah, J.

1. By way of this petition under Article 226 of the Constitution of India, the petitioner has prayed for an appropriate writ, direction and/or order to quash and set aside the impugned communication dated 20.01.2017 and the impugned order dated 27.01.2017, by which, the authority under the Gujarat Entertainment Tax Act, 1977 (hereinafter referred to as the "Act, 1977") has sought to levy/levied the entertainment tax on the musical concert performed/organized by the petitioner.

2. The facts leading to the present Special Civil Application in nutshell are as under:

"2.1. That the petitioner had organized a musical concert on 23.12.2016. That the said musical concert was conducted by popular singer and that the same was live musical night. It is the case on behalf of the petitioner that event organized by the petitioner being musical concert would be exempted from the application of the Act, 1977 in view of Section 3A r/w Schedule III of the Act, 1977. It is the case on behalf of the petitioner that however the respondent authority beyond the scope of their jurisdiction defined under the Act and in violation of provisions thereof, by impugned order had levied entertainment tax while subjecting the income generated through the sale of tickets of the musical concert. That being aggrieved and dissatisfied with the imposition/levy of the entertainment tax of aforesaid musical concert and/or on the proceeds of the event/musical concert organized by the petitioner, the petitioner has preferred by the present Special Civil Application under Article 226 of the Constitution of India."

3. Shri Mihir Thakore, learned Senior Advocate has appeared with Shri Viral K Shah, learned advocate for the petitioner and Shri Kamal Trivedi, learned Advocate General has appeared on behalf of the respondent State.

4. Shri Mihir Thakore, learned counsel for the petitioner has heavily relied upon Section 3, 3A and Schedule III of the Act, 1977.

4.1. Shri Mihir Thakore, learned counsel for the petitioner has submitted that the musical live concert organized by the petitioner on 24.12.2016 would fall in the exempted category in view of the provision contained in Section 3A r/w Schedule III of the Act.

4.2. It is vehemently submitted by Shri Mihir Thakore, learned counsel for the petitioner that as per Section 3A of the Act, which has been amended subsequently, notwithstanding anything contained in Section 3, there shall not be levied and paid tax to the State Government on any payment for admission to entertainments specified in the Schedule III. It is submitted that Section 3 is charging Section which provides that there shall be levied and paid to the State Government and on every payment for admission to an entertainment a tax. It is submitted that however as per Section 3A, notwithstanding anything contained in Section 3, there shall not be levied and paid the tax to the State Government on any payment for admission to entertainments specified in the Schedule III. It is submitted that as per Schedule III which has been inserted by Gujarat Act 8 of 1998, all kinds of musical programmes including musical nights and opera would fall under Schedule III and therefore, all kinds of musical programmes including musical nights and opera shall be exempted from payment of entertainment tax in view of specific provision contained in Section 3A of the Act. It is vehemently submitted by Shri Mihir Thakore, learned counsel for the petitioner that even departmental communication dated 18.02.2016 shall have no application in the facts and circumstances of the present case. It is vehemently submitted by Shri Mihir Thakore, learned counsel for the petitioner that even otherwise the said internal departmental communication would be contrary to Section 3A r/w Schedule III of the Act, 1977.

4.3. It is further submitted by Shri Mihir Thakore, learned counsel for the petitioner that as held by the Hon'ble Supreme Court in catena of decisions that while interpret