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State of Gujarat Etc. v. Hotel Ratrani Through Its Proprietorshri Kanji Vishwram Pat

Supreme Court of India · 10 December 1996 · [1996] SUPP. 9 S.C.R. 820

Court
Supreme Court of India
Decided
10 December 1996
Reported as
[1996] SUPP. 9 S.C.R. 820
Result
Appeal(s) allowed
Bench
K. Ramaswamy, G.T. Nanavati
Length
7 pages
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PETITIONER:
STATE OF GUJARAT ETC.
Vs.
RESPONDENT:
HOTEL RATRANI THROUGH ITS PROPRIETORSHRI KANJI VISHWRAM PATE
DATE OF JUDGMENT: 10/12/1996
BENCH:
K. RAMASWAMY, G.T. NANAVATI

ACT

HEADNOTE

JUDGMENT

WITH

CIVIL APPEAL NOS.4514-15/84 AND 132-33/86

ORDER

The main appeal by special leave arises from the judgment and order of the High Court of Gujarat, made on March 1/4, 1985 in Special Civil Application No.4459/84 and batch. The other appeals relate to the decision of the Bombay High Court in Ramesh Waman Roke & Ors. vs. State of Maharashtra [AIR 1984 Bom.345]. The Gujarat High Court has followed the decision of the Bombay High Court. In all the cases, the facts are not in dispute.

The respective legislatures brought Section 6-A in Bombay and the Gujarat Entertainment Tax Act, 1977 providing for levy and collection of tax on entertainment by Video Cassette Recorder or Player on Television or Videoscope in any place of entertainment or omnibus etc. at the rates specified therein. The latter Act came into force w.e.f. June 14, 1984. The Government made Rules by name, Gujarat Cinema (Regulation & Exhibition by Video) Rules, 1984 9 for short, the "Rules"). The Rules have come into force on the same date. The respondents filed the writ petitions challenging the constitutionality of Section 6-A, Rules 13(1) and 19(ii) of the Rules. The High Court while upholding the constitutionality of the Act and the Rules held that the gross collection of the entertainment tax on the Video Recorder or Video Player on Television or Videoscope is arbitrary and violative of Article 14. It also held that the Rules are ultra vires. Thus, these appeals by special leave.

In Venkateshwara Theater vs. State of A.P. & Ors [(1993) 3 SCC 677], this Court considered the constitutionality of Sections 4, 4-A and 5 of the A.P. Entertainment Tax Act, 1939 providing for levy and collection of entertainment tax on the gross collection in Cinema theater. It was held in paragraph 16 that entertainment tax that would be collected over and above the average occupancy rate would constitute the profit of the proprietor. In the circumstances, it cannot be said that the adoption of the system of consolidated levy in Section 4(1), as amended by Act 24 of 1984, alters the nature of tax and it ceases to be a tax on entertainment.

In paragraph 17, on the gross collections, it was held thus:

"It has been urged that since both

the modes of levy of tax were

prevalent prior to the enactment of

Act 24 of 1984, an option should

have been given to the proprietor

of a cinema theatre to choose

between either of the two modes and

that under the impugned provisions

the choice is confined to two modes

of assessment under the same system

of consolidated levy based on the

gross collection capacity per show,

one on the basis of gross

collection capacity power show

under Section 4(1) and other on the

basis of gross collection capacity

per show for a prescribed number of

shows per week under Section 5. We

find no substance in this

contention. Once it is held that

tax on entertainment could be

levied by either of the two modes,

viz., per payment for admission or

gross collection capacity per show,

it is for the legislature to decide

the particular mode or modes of

levy to be adopted and whether a

choice should be available to the

proprietor of the cinema theatre in

this regard. The legislature does

not transgress the limits of its

legislative power conferred on its

under Entry 62 of List II if it

decides that consolidated levy on

the basis of gross collection

capacity per show shall be the only

mode for levy of tax on

entertainments."

In paragraph 29 and 30, it was held thus:

"29. In the instant case, we find

that the legislature has prescribed

different rates of tax by

classifying theaters into different

classes, namely, air-conditioned,

air-cooled, ordinary (other than

air-conditioned and air-cooled),

permanent and semi-permanent and

touring and temporary. The theaters

have further been categorised on

the basis of the type of the local

area in which they are situate. It

cannot, therefore, be said there

has been no attempt on the part of

the legislature to classify the

cinema theatres taking into

consideration the differentiating

circumstances for the purpose of

imposition of tax. The grievance of

the appellants is that the

classification is not perfect. What

they went is that there should have

been further classification amongst

the theatres falling in the same

class on the basis of the location

of the theatre in each local area.

We do not think that such a

contention is well founded.

30. In relation to cinema theatres

it can be said that the attendance

in the various cinema theatres

within a local area would not be

uniform and would depend on factors

which may vary from time to time.

But his does not mean that cinema

theatres in a particular category

of local area will always be at a

disadvantage so as to be

prejudicially affected by a uniform

rate as compared to cinema theatres

having a better location in the

same local area. It is, therefore,

not possible to accept the

contention that the impugned

provisions are violative of the

right to equality guaranteed under

Article 14 of the Constitution on

the basis that unequals are being

treated equally."

Thus this Court had upheld the power of the Legislature to levy gross collections on the entertainment tax. Section 6-A reads as under:

"6-A(1) There shall be levied and

paid to the State Government, a tax

on an entertainment by video

cassette recorded or video cassette

player on television or videoscope

calculated at the following rates,

namely:-

(a) in any place of entertainment

other than that mentioned in clause

(b).

(I) within the limits of a local

area, the population of which as

ascertained at the last preceding

census and notified by the State

Government in the official gazette

after such census is more than

1,00,000, two rupees per seat in

such place of entertainment:

(II) within the limits of a local

area, the population of which was

ascertained at the last preceding

census and notified by the State

Government in the official gazette

after such census is more than

50,000 but not more than 1,00,000,

on rupee per seat in such place of

entertainment.

(III) in any other area, seventy

paise per seat in such place of

entertainment.

(b) in any omnibus which is used to

the State exclusively as contract

carriage having provision for

entertainment by video cassette

recorder or video cassette player

on television or videoscope, two

rupees per seat in the omnibus.

(2) For the purpose of levy of tax

under this section, it shall be

presumed that

(a) in the case of a place of

entertainment falling under clause

(a) of sub-section (1), a

proprietor provides at least three

entertainments on every day, and

(b) in the case of any omnibus

falling under clause (b) of sub-

section (1), a proprietor provides

at least one entertainment on every

day;

unless the proprietor otherwise

informs the prescribed officer at

such time and in such manner as may

be prescribed.

3(a) Notwithstanding anything

contained in clause (a) of sub-sec.

(I), every proprietor to whom any

of the provisions of that clause

apply shall have an option of

payment of tax a the rates

specified in clause (d) to be

exercise as provided in clause (b)

within ninety days from the date of

the commencement of the Gujarat

Entertainments Tax (Amendment) Act,

1984 and any person who become such

proprietor after that date may

exercise such option within sixty

days from such date.

(b) A proprietor desiring to

exercise an option referred to in

clause (a) shall make an

application to the prescribed

officer in such form as may be

prescribed, to permit him to make

in lieu of amount of tax payable by

him under clause (a) of sub-section

(I), payment of tax at the rates

specified in clause (d).

(c) On an application under clause

(b), the prescribed officer may

grant such permission and thereupon

subject to clause (e) the payment

of tax shall be made accordingly.

(d) where a proprietor has been

permitted to pay tax under clause

(c) he shall be liable to pay

monthly at the following rates,

namely:-

In the case of a place of

entertainment within the local

limits of a local area referred to

-

(1) in sub clause (I) of clause (a)

of sub-section (1) -

(i) five rupees per seat per day

where the proprietor has declared

that he holds not more than three

entertainments per day; and

(ii) six rupees per seat per day

where the proprietor has declared

that he holds more than three

entertainments per day;

(2) in sub-clause (II) of clause

(a) of sub-section (1)

(i) three rupees per seat per day

where the proprietor has declared

that he holds not more than three

entertainments per day; and

(ii) four rupees per seat per day

where the proprietor has declared

that he holds more than three

entertainments per day,

(e) A proprietor who has opted for

payment of tax under clause (a),

may at any time but not before the

expiry of a period of twelve

months, by a notice in such form as

may be prescribed, addressed to the

prescribed officer, revoke his

option from the commencement of any

month following that in which the

notice is given.

(4) For the purpose of levy of tax

under sub-section (1) every

proprietor shall furnish such

returns to the prescribed officer

in such manner or such period and

before such date as may be

prescribed.

(5) Save as otherwise provided in

sub-sections (1) to (4), the

provisions of this Act (except

sections 3, 4 and 6) and the rules

made thereunder shall, so far as

may be, apply in relation to the

tax livable under sub-section (1)

as they apply in relation to the

tax livable under sections 3 and 4;

Rules 13 and 19 of the Gujarat

Cinemas (Regulations of Exhibition

by Video) Rules, 1984 are also

impugned here. They are also

reproduced herein-below:-

13. Power to refuse license: (1)

The Licensing authority shall have

absolute discretion to refuse a

licence if the video cinema is

likely to cause obstruction,

inconvenience, annoyance, risk,

danger or damage to the residents

or passers by in the vicinity of

the cinema.

(2) The licensing authority shall

refuse a license if the distance

between the existing permanent

semi-permanent or touring cinema

and the video cinema is less than

150 metres.

19. Access to inspecting officers,

The licensee shall give free access

to the video cinema at all honors

to -

(i) the licensing authority or any

officer nominated by the licensing

authority under the Act and the

Rules and for checking that the

provisions of the Act and the Rules

are being complied with;

(ii) any Police Officer who is

required by a general or special

order of the licensing authority of

the District Superintendent of

Police or the Commissioner of

Police, as the case may be."

Shri Krishan Mahajan, learned counsel appearing for the respondents, contends that Section 3 of the Act envisages levy of the tax on payment for admission to entertainments on every payment for admission to an entertainment, other than the payment for admission referred to in clause (b), a tax at the following rates specified therein. The Video Recorder or a Player when exhibited entertains the customer; it does not entertain a person on admission. For admission, therefore, it is not an entertainment tax. Accordingly it cannot be levied. We find no force in the contention. It is an admitted position that they entertain the persons on playing the Video Recorder or Video Games on admission or in the omnibus, as enacted under the Act. Thereby, obviously on charging the admission rates or while operating the omnibus during journey, the Video Recorder or Video Player has been exhibited for entertaining traveling passengers. Thus it is an admission to entertain the person on payment. It is then contended that the composition was not available to them at flat rate because there is no regular intake of the persons or of number of shows. Accordingly, the rule is arbitrary. We find no force in the contention.

It is seen that the Rule envisages imposition of the levy of the tax on the basis of the population of the place of exhibition. If it is a place where the population is one lakh and more @ Rs.2/- per seat and if the population is between one lakh and 50,000, @ Re. 1 per seat and in other places at Re.0.75 per seat. It is for the licensee to specify to the authorities, how many persons are entertained. As far as the gross collections are concerned, it cannot be investigated to recall by a rule as to how many of them in each show are admitted. Sub-section 3(2) provides that for the purpose of levy of tax under this section, it shall be presumed that in the case of a place of entertainment failing under clause (a) of sub-section (1), a proprietor provides at least three entertainments on every day and in the case of any omnibus failing under clause (b) of sub-section (1), a proprietor provides at least one entertainment on every day. It is only a presumptive evidence since in the absence of definite information, Rulemaking authority leaves it to the licensee to establish by making application as to how many persons he has been entertaining, unless the proprietor otherwise informs the prescribed officer at such time and in such manner as may be prescribed. Therefore, the proprietor or the licensee has been given option to inform the prescribed authority at such time and in such manner, as the case may be, as per the rules. Sub-section 3(d) postulates that where a proprietor has been permitted to pay tax under clause (c), he shall be liable to pay monthly at the rates specified thereunder. Clause (e) shows that a proprietor who has opted for payment of tax under clause (a), may at any time but not before the expiry of a period of 12 months, by a notice in such form as may be prescribed, addressed to the prescribed officer, revoke his option from the commencement of any month following that in which the notice is given.

Thus it could be seen that he has been given an option for payment of the entertainment tax in the manner laid down in Clause (b). Under Clause 3(a), he is required to make an application as provided under clause (e). Thus considered, it is a valid rule for the due collection of the entertainment tax when the proprietor of the videorecorder/video games entertains the persons admitted into the theater or exhibits the video recorder/video player in omnibus at the rates specified thereunder. Thus the Rule is valid and is not beset with any arbitrariness in the exercise of the power. Accordingly, we uphold Section 6-A and affirm the findings of the High Court declaring Rule 13(2) to be ultra vires. Rule 22 is void. Rule 14(2) is incidental to and consequence of enforcement of regulation.

The appeals are accordingly allowed, the writ petitions stand dismissed. No costs.

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