Ramachandra Iyer, J.-

This appeal arises from the decree of the II Assistant City Civil Judge, Madras, in O.S. No. 1722 of 1956 dismissing the suit instituted by the appellant for recovery of a sum of Rs. 17,252-7-0 under the following circumstances.

The appellant is the proprietor of a picture house in Madras known as “Chitra Talkies”. Under the provisions of the Madras Entertainments Tax Act the appellant paid certain sums by way of entertainment tax in respect of the five annas tickets sold by him between the period 15th August, 1949 to 18th October, 1953. The amount paid was at the rate of one anna per five annas ticket. The appellant later on discovered as a result of a communication received from the Assistant Commercial Tax Officer that the tax due on a ticket of the gross value of five annas was only nine pies, and not one anna, and alleging that he had paid a sum of Rs. 17,252-7-0 by way of excess tax under a mistake of law, filed the suit for recovery of that sum from the Government.

The suit was contested substantially on three grounds, (1) that the payment made to the Government was not the money of the appellant but what was collected by the appellant on its behalf, (2) that the appellant would not be entitled to obtain a refund of payment made voluntarily, though under a mistake of law, (3) that the claim was barred by limitation under section 18 of the Madras Entertainments Tax Act The learned City Civil Judge upheld the objections of the Government under all the three heads and dismissed the suit. Hence this appeal.

It is unnecessary to consider the correctness or otherwise of the view taken by the Assistant City Civil Judge on the question whether a party would be entitled to relief in respect of a payment under a mistake of law, or whether the suit claim was barred by the provisions of section 18 of the Madras Entertainments Tax Act as we are of opinion that his conclusion on the first point is correct.

The Madras Entertainments Tax Act was enacted to impose tax on amusements and other entertainments in the State of Madras. The relevant portions of the Act as it stood at the time when the payment of entertainment tax was made by the appellant to the Government are as follows:

Section 4 (1) states:

“On each payment for admission to any entertainment there shall be levied and paid to the State Government (except as otherwise expressly provided in this Act), a tax (hereinafter referred to as the entertainments tax) calculated at the following rates.............

Provided that in the case of cinematograph exhibitions, the tax shall be calculated at the rates specfied above on each payment for admission, after excluding from such payment the amount of the tax” . (The rest of the section is omitted as unnecessary).

Section 7 (1) states:

“The entertainments tax shall be levied in respect of each person admitted on payment, and shall be calculated and paid on the number of admissions” .

Sub-clause (2) states:

“The entertainments tax shall be due and be recoverable form the proprietor” .

It will be seen that under the provisions extracted above the management of a cinema for example is made the collecting agent for the tax. The amount so collected is a tax on the individual attending the entertainment. It being a tax will be due to the Government and not to the proprietor of the cinema. There is however no evidence in this case to show whether the appellant collected the tax by adding the sum of one anna to a four anna ticket, or by collecting five annas in lump sum from the picture-goer undertaking to pay whatever tax that may be due thereon to the Government from out of the collections. Exhibit B-1 is a typical statement of the tickets sold. That gives only particulars of the number of tickets sold, total amount collected and the tax due thereon at one anna per ticket. It does not show that one anna was collected from each member of the audience on the representation that it was for entertainments tax. But the learned trial Judg

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