TaxTMI 
TaxTMI 
2009 (7) TMI 755
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....ch portion thereof including clause 3.2(e) and that the duty paid by the petitioner is correct amount of duty and the petitioner's liability to pay duty as per their claim specified in para F(c) should be held to be correct and forms the correct basis for calculating entertainment duty payable by the petitioner along with other ancillary reliefs. The petitioner is, inter alia, engaged in the business of operating a multiplex theatre named as Fame Adlabs in the city of Mumbai at Andheri. It is the petitioner's contention that on the basis of the Statements and Objects of the Ordinance and on the basis of section 3(13)(a) of the Bombay Entertainment (Amendment) Act, 2001 (Mah. 2 of 2002), the petitioner applied for exemption and setting up the multiplex for which the petitioner invested huge capital, time and efforts. On the assurance of respondent No. 1, the petitioner went ahead and set up the multiplex on the clear understanding that the nature of exemption was retention benefit whereby the petitioner was entitled to collect the entertainment duty from the patrons and not to pay the same to the State during the exemption period and, therefore, according to the petitioner, re....
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....tiplex theatre. (b) Section 3(1)(c) of the said BED Act provides for the rate of entertainment duty on payment for admission which is fixed by the proprietor. On perusal of the table under section 3(1)(c), it is important to point out that the amount paid for admission to the multiplex theatre is to be fixed by the proprietor of the multiplex. For the sake of convenience table below section 3(1)(c) is reproduced which is as under: Serial No. Area Rate of entertainment duty on payment for admission by the proprietor 1 Within the limits of Brihan Mumbai Municipal Corporation 45 per cent 2 Within the limits of all other Municipal Corporations and Cantonments As such, the rate of entertainment duty must be on the payment for admission fixed by the proprietor. Therefore, it is clear that the rate of entertainment duty can only be on net price after which the gross is arrived at. Further, section 4 sets out the manner in which the entertainment duty payable is to be levied. There is a clear break-up between the entertainment duty which is calculated on the net price, and the gross. 40 per cent On plain reading of sub-section (2)(a), it is clear that the g....
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....than three theatres in a complex with minimum total seating capacity of 1000, and such other incidental and connected matters and facilities, and multi-entertainment activities and other facilities as specified by Government in this behalf, by notification in the Official Gazette.' Bombay Entertainment Duty (Amendment) Act, 2001 (Mah. 2 of 2002), which is the statute on the basis of which entertainment duty is levied on the petitioner's multiplex complex known as Fame Adlabs (multiplex) which levy and assessment is the subject-matter of this petition. (i) The principle statute that governs entertainment duty in the State of Maharashtra is the Bombay Entertainment Duty Act, 1923 (BED Act). Section 3 of the said BED Act, inter alia, stipulates the rate of entertainment duty on payment for admission fixed by the proprietor. The prescribed rate of entertainment duty on the payment for admission fixed by the proprietor within the city limits of Brihan Mumbai Municipal Corporation is 45 per cent and for other municipal corporations and cantonments the rate of entertainment duty is 40 per cent and the other areas have a rate as prescribed under the aforesaid section. (ii) The gro....
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....etor of a multiplex theatre complex the duty in respect of any such complex as follows, namely: (i) For the first three years from the date of commencement of the multiplex theatre complex, no duty. (ii) For the subsequent two years, at the rate of twenty-five per cent of the rate of duty leviable under clause (b) and clause (c) of sub- section (1) or, as the case may be, for sub-section (3). (iii) From the sixth year, full amount of duty leviable at the rate specified in clause (b) and clause (c) of sub-section (1) or, as the case may be, sub-section (3): Provided that, the duty leviable shall also be subject to the provisions of sub-section (2), wherever applicable. (iv) Explanation.-For the purposes of this sub-section,- (i) The date on which the multiplex theatre complex is opened to the public for admission shall be deemed to be the date of commencement of the multiplex theatre complex; (ii) The change in the management of multiplex theatre complex, or the change in the name of the complex shall not be construed as a fresh commencement of the multiplex theatre complex. (b) The concession in duty as provided under clause (a) shall be available to the propri....
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....reproduced herein below is clause 5(E)(i) of the said GR. 'The applicant will be eligible to get the exemption from paying entire entertainment tax for the period of first three initial years from the date of commencement of the complex, whereas he will be admissible for exemption from paying 75 per cent of the entertainment tax due for the further two years. The applicant must pay the entertainment tax at the prescribed rate from the sixth year.' Exhibit 'C' to the petition is a copy of the Government resolution dated January 4, 2003 being Resolution No. ENT-1099/ Pra.Kra.76/T-1. It is important to mention that in order for an applicant to be eligible for exemption from payment of entertainment duty on the basis of the Act read with the said GR, all applicants were required to submit applications to respondent No. 3 from August 17, 2001 to August 16, 2002 to be considered for such exemption. In the light of section 3(13)(a) of the said BED Act, read with para 5(E)(i) of the said GR, the nature of exemption/ concession granted to an applicant is from payment of entertainment duty to the Government, while the petitioner is permitted to collect entertainment duty from the pa....
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....on is to be fixed by the proprietor. It is the case of the petitioner that the petitioner is in its fourth year of operations of the multiplex and liable to pay 25 per cent of the normal rate of entertainment duty leviable from June 7, 2005. The entertainment duty is payable at the rate of 25 per cent of the rate of duty leviable, (i.e., 25 per cent of 45 per cent) as per the provisions of section 3(13)(a)(ii) of the said BED Act. The rate of entertainment duty payable under the Act can be determined on the basis of 'payment for admission' fixed by the proprietor. It is the case of the petitioner that from June 7, 2005, the petitioner has duly made payment of the entire entertainment duty to respondent No. 3 in accordance with the Act read with the G.R.s issued pursuant thereto. On June 1, 2005, the petitioner addressed a letter to the Principal Secretary, Revenue Department of respondent No. 1. In the aforesaid letter, the petitioner informed the Principal Secretary of respondent No. 1 that the multiplex became eligible for exemption from payment of entertainment duty from June 7, 2002. Further, the petitioner submitted that they were in the fourth year from the date of c....
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....said meeting to the Multiplex Association, i.e., MAI. Exhibit 'G' to the petition is a copy of the minutes which have been made available by respondent No. 1 to the petitioner under a letter dated September 21, 2005 and exhibit 'G-1' to the petition is the copy of the said letter. On December 5, 2005, the petitioner received a notice No. 1 from respondent No. 4 calling upon the petitioner to make a payment of Rs. 1,16,95,846 being exhibit 'A-1' to the petition. In response to the aforesaid notice of respondent No. 4, the petitioner addressed a letter dated December 10, 2005 to respondent No. 4 in which the petitioner contended the following: (i) First, the petitioner was unclear as to how respondent No. 4 had arrived at the duty of Rs. 1,16,95,846. It was also unclear how the 24 per cent interest was being levied. (ii) Secondly, the petitioner contended that respondent No. 4, in arriving at the aforesaid duty, had levied the full entertainment duty at the rate of 45 per cent without considering the exemption available to the petitioner from paying 75 per cent of the entertainment duty; (iii) The petitioner further stated that the actual number of tickets for Screen I wa....
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....dment) Act, 2005 (Act No. 54 of 2005). In addition thereto, the Circular, in paragraph 3.2(ee) thereof, inter alia states that: (a) The multiplex proprietor is not entitled to collect entertainment duty and retain the same; and (b) Multiplex theatres are not to show the tax amount in their tickets for the first three years from the date of eligibility and in subsequent two years they will show only 25 per cent of the rate of duty as the tax amount and not more than that. It has been stated that these instructions must be passed on to the owners of multiplex theatre complexes. It is pertinent to point out that this clarification has been issued for the first time and the same is inconsistent with the said BED Act and the said GR. (exhibit 'L' is a copy of the said circular) The petitioner also craves leave to refer to and rely upon the Ordinance dated November 29, 2005 which is converted into an Act on December 27, 2005. On January 21, 2006, respondent No. 4 issued another impugned notice/ impugned order of demand (notice No. 3) calling upon the petitioner to make a payment of Rs. 70,39,529 on the basis of a statement attached. (exhibit 'M' is a copy of the said notice d....
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....45 per cent prevailing rate) (C) Service charges : (D) Gross rate of ticket In order to demonstrate in what manner the petitioner has collected enter- : (A+B+C) Particulars of ticket Ticket rate as per ticket issued by the petitioner Correct method of computation of entertainment duty as per G.R. (A) Net rate of tickets 93.05 93.05 (B) Entertainment duty 41.95 10.46 (C) Service charges Nil Nil (D) Gross rate of ticket tainment duty from the patrons, a xerox copy of the ticket of multiplex theatre 135 103.51 'Fame Adlabs' of the petitioner has been annexed as exhibit '1'. It is the case of the respondents that a meeting was convened by the Government on August 23, 2005 to discuss the issue of computation of entertainment duty, when the representatives of multiplex theatre com- plexes were also present. According to the representatives, the proprietor is not entitled to collect entertainment duty on net rate of ticket as applicable and is also entitled to retain 100 per cent of the entertainment duty for the first three years. It was pointed out to the representatives of the multiplex theatre complexes that the 'r....
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....um for the first 30 days and at the rate of 24 per cent per annum thereafter on such amount from the date such amount became or becomes payable till the amount and interest is fully paid. It is the case of the respondents that the petitioner is trying to take advantage of the typing error in the statement of the respondents and that the errors if any, can be verified and corrected accordingly and in any event, further notice has been issued to the petitioner demanding a sum of Rs. 70,39,529 and the errors if any, have been adjusted. Therefore, according to the respondents, petitioners are liable to pay to the Government a sum of Rs. 1,98,10,806 (1,16,95,846 + 70,39,529 + 10,75,431) till date and the petitioner be directed to pay the said amount along with further interest to the Government and the petition be dismissed with costs. The petitioner has tried to explain their case in rejoinder by pointing out that the petitioner has not increased the gross ticket price; hence the patrons are not burdened with any extra amount by way of entertainment duty or otherwise as wrongly portrayed by the respondents, in their affidavit-in-reply. While the exemption from payment of entertai....
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....BED Act of 1923 and, therefore, the court ought not to have entertained the writ petition. The key issue which is called for determination in the matter is whether the petitioner although having collected the entertainment duty at 45 per cent, i.e., 100 per cent of the duty during the period, it was eligible to enjoy exemption from entertainment duty, i.e., from June 7, 2005 to January 19, 2006 to the extent of 75 per cent, i.e., concessional rate being 25 per cent of 45 per cent. Mr. Tulzapurkar, learned Senior Advocate appearing for the petitioner, submitted that the impugned notices and orders have been issued by respondent No. 4 without taking into account the exemption available to the petitioner from paying 75 per cent of the entertainment duty by virtue of its eligibility certificate received on June 7, 2002 and section 3(13)(a)(ii) of the said BED Act of 1923. It is submitted that respondent No. 4 has arrived at the illegal demand of Rs. 1,16,95,846 by levying the full entertainment duty at the rate of 45 per cent under section 3(c) of the Act notwithstanding the exemption available to the petitioner by virtue of eligibility certificate received on June 7, 2002. As su....
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....or/ operator and not the patron. The fact that the exemption was from payment of entertainment duty is clearly evidenced by reading clause 5E(i) of the said GR reproduced hereinabove, from which it is very clear that the exemption was from payment of entertainment duty and there was no restriction from collecting the entertainment duty from the patrons/ consumers. According to Mr. Tulzapurkar, the learned Senior Counsel for the petitioner, section 3(13)(b)(iii) stipulates that for the period of exemption the multiplex proprietor/operator is not entitled to levy service charge. As such, where the legislation wants to preclude the proprietor/operator from levying any charge, the same has been explicitly mentioned and in respect of payment of entertainment duty, there is no stipulation under the Act like in the case of service charge under the aforesaid sub-section from not levying the same on the patrons. It is further submitted that sub-section (c) of section 13 provides that in case of violation of condition (i) or (v) of clause (b), the concession shall be withdrawn and the proprietor/operator would become liable to pay duty from the date of commencement of the multiplex com....
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....the G.R. itself clarifies that it was issued for implementation of the provisions of the Bombay Entertainments Duty (Amendment) Act, 2005 and clause said BED Act and clause 3.2 of the circular clarified in respect of the multiplex theatre complex. On the other hand, it makes it clear that the powers to fix minimum rates of admission in the multiplex theatre complex were conferred on the Collector but there was no cap on the admission fee and, therefore, the contention of the respondents that it was not admissible for the multiplex theatre complex to recover the entertainment duty from spectators at a prescribed rate and retain the same with them during the concessional period of five years from the date of issuance of eligibility certificate cannot be interpreted in a way to fasten the liability on the petitioner who were only liable to pay entertainment duty at the prevailing rate of 25 per cent out of the total leviable duty, i.e., 45 per cent on admission ticket and therefore, the petition deserves to be allowed. Mr. Nair, the learned Special Counsel for the State, submitted that this is a clear cut case of unjust enrichment and the State was justified in claiming that....
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....TC 467 that the mandate of the Constitution is lucid and clear and must be taken to mean what it says. 'No tax' takes in every type of tax. It has been contended on behalf of the Union of India that article 265 merely lays down that no direct tax shall be levied or collected except by authority of law. The first question is that if that was the intention of the Constitution makers, then why did they not say so in so many words? 'Taxation' has been defined in article 366(28) to include the imposition of any tax or impost, whether general or local or special, and 'tax', shall be construed accordingly. Therefore, the word 'tax' will include any tax general, local or special. That means every kind of tax direct or indirect will come within the ambit of article 265. He has further relied upon Entry Tax Officer, Bangalore v. Chandanmal Champalal and Co. [1994] 95 STC 5 (SC); [1994] 4 SCC 463 wherein it was held as under: 'It is true that Burmah Shell [1963] Supp 2 SCR 216; AIR 1963 SC 906, Hiralal Thakorlal AIR 1976 SC 1446 and Parekh Automobiles [1990] 1 SCC 367, were concerned with State enactments which empowered the municipalities to levy the impost, all the same a close readin....
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....petent to legislate providing for the retention by any authority of fee illegally levied. For this purpose, reliance was placed by the learned counsel on the decision of this court in R. Abdul Quader & Co. v. Sales Tax Officer [1964] 15 STC 403 (SC); AIR 1964 SC 922. We are afraid that this decision also is of no avail to the appellants.' Mr. Tulzapurkar, the learned Senior Counsel for the petitioner, submit- ted that the submission on behalf of the respondents and the authorities on which reliance is placed relate to the case of unjust enrichment which is not the issue in the present case. He submitted that identical issue had come before the Supreme Court in the case of R. Abdul Quader & Co. v. Sales Tax Officer, 2nd Circle, Hyderabad [1964] 15 STC 403 (SC); AIR 1964 SC 922 wherein it was held as under: (page 408 of STC) '... It is remarkable that this provision makes the person punishable for his failure to pay the amount which is not authorised as a tax at all under the law, to Government. It does not provide for a penalty for collecting the amount wrongly by way of tax from purchasers which may have been justified as a penalty for the purpose of carrying out the objects ....
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.... be inserted after clause (f), namely, '(f-a). Multiplex theatre complex' means an entertainment-cum-cultural center which provides- (i) within the limits of Municipal Corporation of Brihan Mumbai not less than four theatres in a complex with minimum total seating capacity of 1250; and (ii) anywhere else in the State, not less than three theatres in a complex with minimum total seating capacity of 1000, and such other incidental and connected matters and facilities, and multi-entertainment activities and other facilities as specified by Government in this behalf, by notification in the Official Gazette. Thereafter, in section 3 of the principal Act, after sub-section (12), the following sub-section came to be added, i.e., (13)(a) and to that extent the Bombay Entertainments Duty (Amendment) Ordinance, 2001 came to be repealed. The Statement of Objects and Reasons which was given at thetime the Bill was introduced by the then Minister for Revenue in the House is reproduced hereunder: '(1) As a result of the onslaught of cable television and advancement in the field of information technology, the average occupancy in cinema theatres has fallen considerably and hardly any ....
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....inuously run the complex for a period of ten years. (e) Power is also taken to withdraw the concession in case of violation of the conditions subject to which the concession is granted. (f) Provision is also made for the existing theatres to convert into multiplex theatre complex and to avail of the concessions, subject to compliance with the specified conditions and requirement for setting up of a complex. 6.. As both Houses of the State Legislature were not in session and the Governor of Maharashtra was satisfied that circumstances existed which render it necessary for him to take immediate action further to amend the Bombay Entertainment Duty Act, 1923, for the purposes aforesaid, the Bombay Entertainments Duty (Amendment) Ordinance, 2001 (Mah. Ord. 24 of 2001), was promulgated by the Governor of Maharashtra on the August 17, 2001. 7.. The Bill is intended to replace the said Ordinance by an Act of the State Legislature.' Therefore, it is quite clear that the State wanted to promote and encourage multiplex theatre complexes and, therefore, it decided to offer special concessions as an incentive for a period of five years in the entertainment duty subject to certain c....
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....ther shows. In the present case, the respondents have placed on record the computerised admission ticket at exhibit 1 to their affidavit dated February 14, 2006 wherein they have shown that during the second stage of concession, the exhibitor was supposed to charge 25 per cent of the entertainment tax on the admission fee, they have charged 45 per cent and the gross total comes to Rs. 135, i.e., the admission fee shown as Rs. 93.05, entertainment tax Rs. 41.95 and gross total is Rs. 135. The specimen of computerised tickets in all the three phases, i.e., when the incentive was duty-free, duty was 25 per cent of the entertainment duty and when no incentive was available they were required to charge full entertainment tax, i.e., 45 per cent in the cinema theatres in Mumbai. During 100 per cent tax exemption, the ticket shows total Rs. 135 without any classification. During 75 per cent tax exemption, before circular dated January 5, 2006 was issued, the computerised ticket shows admission as Rs. 93.05, entertainment tax Rs. 41.95 and gross total Rs. 135. During 75 per cent exemption after circular was issued, it shows admission fee Rs. 121.30, entertainment tax Rs. 13.70 and gross ....
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.... State of Maharashtra and others. The learned A Panel Counsel for the respondents is not able to place before us any other similarly situated case of proprietors of multiplex theatres like the petitioners having been called upon to pay the entertainment tax duty to the extent of 45 per cent or 40 per cent during the regime of tax exemption to the extent of 75 per cent of the entertainment tax duty and ought to have shown 25 per cent on their tickets as entertainment tax duty. Section 3(13)(a) of the said BED Act which clearly regulates the scheme is also charging section in so far as the liability to pay entertainment duty is concerned which clearly provides that entertainment duty shall be levied and collected by the State Government from the proprietor of multiplex theatre complex the per cent of duty in respect of any such complex is given in the Schedule and then specifies that for the first three years from the date of commencement of the multiplex theatre complex, no entertainment duty will be levied and collected by the State from the proprietor of a multiplex theatre complex and (ii) for the subsequent two years, at the rate of twenty-five per cent of the rate of duty le....
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....e reason that it is not a tax at all within the meaning of entry 54 of List II nor can the State Legislature under the guise of incidental or ancillary power do indirectly what it cannot do directly. There is one more aspect which cannot be overlooked in the present case and, i.e., the so-called error of specifying entertainment tax/duty on the computerised ticket has crept in as a result of implementing the G.R. issued under the Rules which govern the printing and publishing of admission tickets. The clauses in G.R. clearly provides for mentioning of various heads while publishing, printing admission tickets to the place of entertainment. In all probability, the proprietors of multiplex theatre complex till the circular dated January 5, 2006 came to be issued (which according to the respondent-State was clarificatory in nature), felt that they have to show entertainment tax on the admission ticket and can claim 75 per cent tax exemption of the same and for this reason they have shown entertainment ticket as per the rate prevailing in the prescribed municipal areas and this is how the petitioners have also filed their returns with Entertainment Department of the State and claime....
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....s. Asha Gopalan Nair, Advocates with him) for the appellants. H.N. Salve, Senior Advocate, (Shyam Dewan, E.C. Agrawala, Mahesh Agarwal, Rishi Agrawala, Vineet Naik, Ameet Naik and Ravi Suryavanshi, Advocates, with him) for the respondent. JUDGMENT The judgment of the court was delivered by S.B. SINHA J.-Leave granted. Introduction: The doctrine of unjust enrichment, as opposed to doctrine of retention, is the core question involved herein. It arises out of a judgment and order dated October 21, 2008 passed by a Division Bench of the Bombay High Court in Writ Petition No. 22 of 2006. Background facts: The respondent is a company registered and incorporated under the Companies Act, 1956. It, inter alia, is engaged in the business of operating a multiplex theatre, commonly known as Fame Adlabs in the town of Mumbai for screening of films in the said theatre. Indisputably, the provisions of the Bombay Entertainments Duty Act, 1923 (for short, "the Act") are applicable to the said multiplex theatre. The State of Maharashtra, however, adopted a policy decision to provide certain exemptions in the matter of payment of entertainment duties. Entertainment duty is pay....
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....e incentive period which was of two years. The impugned notices and order exhibit A1 and A2 and H are quashed and set aside. Rule made absolute with no order as to costs." Contentions Mr. Shekhar Naphade, learned senior counsel appearing on behalf of the appellants, in support of this appeal, urged: (i) Having regard to the provisions of the Act and the Bombay Enter- tainments Duty Rules, 1958 (for short, "the Rules") in terms whereof entertainment duties were to be levied and collected, the High Court committed a serious error in opining that the State had not granted any exemption to the owners of the multiplex theatre, but the same were by way of retention benefit. (ii) As admittedly from the tickets issued by the respondent, it would appear that they had realized full duties from the cinema-goers payable in terms of the Act for which they had no authority, the impugned judgment is wholly unsustainable. (iii) Any amount of tax illegally realized by the assessee from the cinema-goers would be hit by section 72 of the Indian Contract Act, 1872 and, thus, the State would have right to recover the same in exercise of its power conferred on it under article 296 of the ....
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.... get; (iv) any payment, by whatever name called for any purpose whatsoever, connected with an entertainment, which a person is required to make, in any form as a condition of attending, or continuing to attend the entertainment, either in addition to the payment, if any, for admission to the entertainment or without any such payment for admissions; (v) any payment made by a person for admission to a video exhibition irrespective of whether any eatables or beverages or both are or are not provided to him against such payment; (vi) any payment made by a person by way of contribution or subscription or installation connection charges or any other charges collected in any manner whatsoever for television exhibition with the aid of any type of antenna with a cable network attached to it or cable television; (vii) any payment made by a person to the proprietor of a Directto-Home (DTH) Broadcasting Service by way of contribution, subscription, installation or connection charges, or any other charges collected in any manner whatsoever for Direct-to-Home (DTH) Broadcasting Service with the aid of any type of set top box or any other instrument of like nature which connects telev....
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....ll amount of duty leviable at the rate specified in clause (b) and clause (c) of sub-section (1) or, as the case may be, sub-section (3): ... (b) The concession in duty as provided under clause (a) shall be available to the proprietor of the multiplex theatre complex subject to the following terms and conditions, namely:- (iii) during the period of concession covered by clause (a) above, the minimum rates of admission in a multiplex shall be determined by the Collector. Such minimum rates of admission shall not be less than the prevailing highest rate, excluding the rates of the highest priced fifty seats, in any of the cinemas theatres in the district in which multiplex is situated and accordingly such minimum rates of admission may be different for morning, matinee and other shows; ..." Section 4 of the Act reads as under: "4. Method of levy.-(1) Save as otherwise provided by this Act, no person other than a person who has to perform some duty in connection with an entertainment or a duty imposed upon him by any law, shall be admitted to any entertainment except with a valid printed ticket or complimentary ticket. (2) Every proprietor of any entertainment in res....
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....ach part clearly marked with the price of admission, and with the date and show for which it is available and also with the book number and the serial numbers (being such series and numbers in respect of the ticket book and tickets as may be previously approved by the prescribed officer) and shall also have securely affixed to it a stamp of the value of the duty payable out of the said price of admission: Provided that the prescribed officer may, upon such conditions and for such period as he thinks fit, exempt any proprietor from the operation of this rule or any part thereof. ... 15.. Unstamped tickets issued under section 4(2)(a) and (b).-(1) Every ticket, not being a complimentary ticket, issued by a proprietor who has been allowed to pay the duty under the provisions of clause (a) or clause (b) of sub-section (2) of section 4, shall consist of three parts. One part shall remain on the ticket book and the remaining two parts shall be detached therefrom and issued to the purchaser; and shall bear on each part of such ticket the price of admission, the book number and the serial number (being such series and numbers in respect of the ticket book and tickets as may be pre....
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....o the resolution dated September 21, 2000 is as under: "(1) The three parts of the ticket should be in the following order. Portion remaining with the theatre owner Portion remaining with the door keeper Portion to be retained by the spectators (A Counter) (D Counter) (P Counter) ... (8) Sale of tickets of the movie which is exempted from entertain- ment tax, the tickets should have printed on it 'tax free'. And of ticket after deduction of tax should be printed on the ticket. ... (11) Each ticket should be printed in the format shown below: Alphabet of series Code No. of theatre Sale Centre Show time Show date/day Seat group Row No. Seat No. Roll No. Name of theatre Address A/D/P counter Six digit ticket number Entrance fee Entertainment tax Service charges Total entrance fee Rs." Clause 3 of the resolution dated January 4, 2003 reads as under: "3. It was declared by the Government resolution dated the Sep- tember 20, 2000 that the concessions to ....
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....e. Explanation.-In the article, the expressions 'Ruler' and 'Indian Slate' have the same meanings as in article 363." Statutory interpretation A statute, as is well-known, must be read in its entirety, then Chapter by Chapter and section by sect ion. It is also well-settled that the rules validly made form part of the Act. Entertainment duty is a tax. Tax, as is well-known, is a compulsory exaction. There is, it is trite, no equity about tax. It is a common burden. The State levied the duty in exercise of its statutory power. Sub-section (1) of section 3 of the Act talks in imperative terms. Sub-section (13) of section 3 of the Act, wherewith we are concerned, provides for an exemption. It contains a non obstante clause. Such exemption is granted wholly or partly and spread out over a period of five years. It is to be granted to the owner of the multiplex theatre complexes subject to the terms and conditions specified in clause (b) of section 3(13) of the Act. The crucial words are "there shall be levied and collected by the State Government". Such levy and collection is to be made from the proprietor of a multiplex theatre complex. By reason of the said provision, n....
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....et issued by the petitioner Corrected method of computation of entertainment duty as per G.R. (A) Net rate of tickets 93.05 93.05 (B) Entertainment duty 41.95 10.46 (C) Service charges Nil Nil (D) Gross rate of ticket 135.00 103.51" In view of the aforementioned admitted situation, the State is entitled to raise a contention that whether the respondent was entitled to keep the entire gross receipt for the first three years and 75 per cent of the tax payable for the next two years thereafter is the question. The respondent itself has shown the net rate of tickets which they charged by way of admission charges, entertainment duty separately. The respondent had indisputably been collecting 45 per cent of the amount of admission fee by way of entertainment duty, i.e., the full duty payable in terms of the provisions of the said Act and the Rules. The contention of Mr. Salve that the entire amount of Rs. 135 became chargeable from the cinema-goers as a price is fallacious. If the sum of Rs. 135 is the amount which the owner of a multiplex theatre complex becomes entitled to appropriate, the rate of admission would come down from the sixth yea....
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....cer, Gujarat v. Ajit Mills Limited [1977] 4 SCC 98 See [1977] 40 STC 497 (SC)., while interpreting the Bombay Sales Tax Act providing for terms "collected" and "shall be forfeited", this court held that the terms "fine", "forfeiture" and "penalty" are often used loosely. Recourse to forfeiture can be taken by way of breach of prohibitory direction. Krishna Iyer, J. opined as under See at page 515 of [1977] 40 STC.: "38. The apparent apprehension that the financial burden of forfeiture can be avoided if the dealer is prosecuted is also not correct. The criminal court can punish only to the extent specified in section 64(1). Section 37(4), properly read, forbids penalty plus prosecution, but permits forfeiture plus prosecution. The word 'penalty' in its limited sense in section 37(1) and section 37(4) does not include forfeiture which is a different punitive category. Forfeiture is a penalty, in its generic sense, but not a penalty in the specific signification in section 37(1) and (4). After all, the functionary is exercising quasi-judicial powers and not insisting on maximum exactions. Every consideration which is just and relevant must enter his verdict lest the order its....
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....titution Bench. Section 46 of the Bombay Sales Tax Act, 1959 provided that no person shall collect any sum by way of sales tax which is not exigible according to law. Section 37 provided for penalties in case of violation of the provisions of section 46. Not only the person so collecting was liable to pay a penalty not exceeding Rupees two thousand but in addition thereto, any sum collected by the person by way of tax in contravention of section 46 was also liable to be forfeited to the State Government ..." The Act also contains a penal clause in sections 5 and 5A of the Act. Section 5 of the Act provides for punishment for non-compliance with section 4 and section 5A provides for punishment for non-compliance with other provisions. The High Court, however, opined that had the State provided for an exemption, it could have invoked section 6 of the Act but before us Mr. Salve conceded that that part of the judgment is not correct as section 6 has no application in a case of this nature. In absence of any express statutory provision, allowing the proprietors of the multiplex theatre to retain the benefit, it is difficult for us to arrive at such an inference. The State has ....
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....chment may be held to be applicable. A person who unjustly enriches himself cannot be permitted to retain the same for his benefit. Where it becomes entitled thereto the doctrine of unjust enrichment can be invoked irrespective of any statutory provisions. In Mafatlal Industries Ltd. [1997] 5 SCC 536 See [1998] 111 STC 467 (SC)., section 72 of the Contract Act providing for restitution may be taken recourse to. Doctrine of "unjust enrichment" was resorted to, observing See page 547 of [1998] 111 STC.: "(iii) A claim for refund, whether made under the provisions of the Act as contemplated in proposition (i) above or in a suit or writ petition in the situations contemplated by proposition (ii) above, can succeed only if the petitioner/plaintiff alleges and establishes that he has not passed on the burden of duty to another person/other persons. His refund claim shall be allowed/decreed only when he establishes that he has not passed on the burden of the duty or to the extent he has not so passed on, as the case may be. Whether the claim for restitution is treated as a constitutional imperative or as a statutory requirement, it is neither an absolute right nor an unconditional o....