TaxTMI 
TaxTMI 
2011 (8) TMI 1011
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....les Tax Revision Petition Nos. 123, S.B. Sales Tax Revision Petition Nos. 124, S.B. Sales Tax Revision Petition Nos. 125, S.B. Sales Tax Revision Petition Nos. 126, S.B. Sales Tax Revision Petition Nos. 127, S.B. Sales Tax Revision Petition Nos. 130, S.B. Sales Tax Revision Petition Nos. 131, S.B. Sales Tax Revision Petition Nos. 132, S.B. Sales Tax Revision Petition Nos. 135, S.B. Sales Tax Revision Petition Nos. 137, S.B. Sales Tax Revision Petition Nos. 140, S.B. Sales Tax Revision Petition Nos. 182 of 2009, S.B. Sales Tax Revision Petition Nos. 8, S.B. Sales Tax Revision Petition Nos. 9, S.B. Sales Tax Revision Petition Nos. 72, S.B. Sales Tax Revision Petition Nos. 73, S.B. Sales Tax Revision Petition Nos. 74, S.B. Sales Tax Revision Petition Nos. 78, S.B. Sales Tax Revision Petition Nos. 79, S.B. Sales Tax Revision Petition Nos. 109, S.B. Sales Tax Revision Petition Nos. 110, S.B. Sales Tax Revision Petition Nos. 111, S.B. Sales Tax Revision Petition Nos. 112, S.B. Sales Tax Revision Petition Nos. 113, S.B. Sales Tax Revision Petition Nos. 114, S.B. Sales Tax Revision Petition Nos. 115, S.B. Sales Tax Revision Petition Nos. 116, S.B. Sales Tax Revision Petition Nos. 117, S.B.....
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....uestions with regard to interpretation and applicability of the same gazette notification/s issued by the Government and therefore they were heard together and are now being decided by this common judgment. The controversy that has arisen in the present case is result of different notifications issued by the Government in exercise of its powers conferred under sub-section (2) of section 7 of the Act of 1957. The stand of the assessees in all these cases is that they made huge investments in the purchase of land and construction of multiplex cinema halls motivated by notification of the Government of Rajasthan in its Finance Department dated March 15, 1996. The notification dated March 15, 1996 issued by the Government, provided that the Government in public interest has decided to exempt the new cinema halls from the purview of realising the entertainment tax for a period of five years subject to the condition that commercial exhibition in such cinema halls is started by March 31, 2000. The contention of the assessees is that the Government issued this notification with the avowed objective of encouraging construction of cinema halls, which business had received a serious set bac....
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....nd taxmption was provided to such newly multiplex cinema halls, drive-in-cinema/theatre, provided commercial exhibition of films in which was started before March 31, 2002, for a period of five years, namely; 100 per cent in the first and second years, 90 per cent in the third year, 80 per cent in the fourth year and 70 per cent in the fifth year. By yet another notification dated February 25, 2008, there was change in the slab by providing tax exemption of 100 per cent in first, second and third years, 90 per cent in fourth year and 80 per cent in fifth year. Revision petitions have thus been filed assailing two sets of judgment of the Rajasthan Tax Board. There are in all five notifications issued by the Government under section 7(2) of the Act, on interpretation of which hinges the fate of these petitions. These notifications for the facility of reference are reproduced hereunder: "Notification dated March 15, 1996 In exercise of the powers conferred by sub-section (2) of section 7 of the Rajasthan Entertainments and Advertisements Tax Act, 1957, the State Government being of the opinion that it is expedient in the public interest so to d....
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....p; (i) 100 per cent in the first year (ii) 100 per cent in the second year (iii) 90 per cent in the third year (iv) 80 per cent in the fourth year (v) 70 per cent in the fifth year. Notification dated February 25, 2008 S. O. 442.- In exercise of the powers conferred by sub-section (2) of section 7 of the Rajasthan Entertainments and Advertisements Tax Act, 1957 (Rajasthan Act No. 24 of 1957), the State Government being of the opinion that it is expedient in the public interest so to do, hereby makes the following amendment in this Departments Notification No. F.10(14) FD/Tax/97-Petitioner-89 dated August 8, 2002, namely:- AMENDMENT.-In the said notification, for the existing expression: (i) 100 per cent in the first year (ii) 100 per cent in the second year (iii) 90 per cen....
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....xpenditure on purchase of land and construction of the multiplex cinema halls, which is a long drawn process and cannot be completed overnight. The assessee have been treated as cinema halls and they were granted licences, which were renewed on year to year basis by the, licensing authorities in terms of section 11 of the Act of 1957. The subsequent notification dated February 25, 2008 on the basis of which the Revenue is seeking to realize the tax does not supersede the earlier notification dated March 15, 1996, whereas, the Government while issuing notification dated August 8, 21002 has superseded the notification dated- February 18, 2002. Benefit of the earlier notification dated March 15, 1996 is therefore still available to the assessees, on the basis of which, they have made huge investments in construction of multiplex cinema halls under the licences granted to them by the licensing authorities. Shri Pankaj Ghiya, learned counsel, argued that the District Magistrate/Collector, who is licensing authority, has imposed a condition on the asses-sees not to charge any entertainment tax by simultaneously fixing the rate of admission fee of cinema house. The assessees therefore we....
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....ought to have made a reference to the Larger Bench. Without prejudice to his submission made above however, Shri Pankaj Ghiya, learned counsel for the assessees, has alternatively argued that in so far as the period from March 2002 to February 2005 is concerned, revision petitions of either side have become infructuous as per the subsequent Government notification dated August 8, 2002 read with amended notifications dated August 18, 2002 and February 25, 2008, according to which, the Government itself has granted 100 per cent tax exemption to the multiplex cinema halls up to first three years. Thus, no liability is accrued to the assessees in so far as those cases are concerned. However, for the subsequent two years, tax exemption now is restricted to only 90 per cent in fourth year and 80 per cent in fifth year. If tax exemption in that year is spread over the period of five years, it would come only to six per cent of the total tax liability for the entire span of five years. Shri Pankaj Ghiya, learned counsel for the assessees, has cited the letter of the Commissioner, Commercial Taxes, Rajasthan, Jaipur dated September 11, 2007 issued in respect of New Kohinoor Twin Cinema, J....
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....t 8, 2002 read with amended notification dated February 25, 2008. Even if subsequent notification dated February 18, 2002 has not superseded earlier notification dated March 15, 1996, that would not make any difference because earlier notification was general notification, which was issued for the cinema halls whereas, subsequent notification carves out an exception for special category of cases, i.e., newly built multiplex cinema halls/drive-in-cinema/theatres, which have commenced their commercial exhibition from March 31, 2002. In the absence of definition of "multiplex cinema hall", one has to go by the common parlance meaning that is attached to the phraseology "multiplex cinema houses", which means multiple number of cinema halls situated together in one building, which may or may not have a mall and other shops facilities therein, whereas, normal "cinema hall" is understood as a unitary cinema hall without there being any mall or shopping facilities attached thereto. Shri R.B. Mathur, learned counsel/argued that while normal law in revenue matters is that benefit of ambiguity in regard to interpretation of any rule, notification, circular shoul go to assessees, however tax ....
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....e to the same provisions for newly built cinema hall/drive-incinema/theatres, no such condition was imposed and the period of benefit of tax exemption was restricted to three years and slab that was given was 75 per cent in the first year, 50 per cent in second year and 25 per cent in third year. When however, subsequent notification dated August 8, 2002 was issued, the condition again was that commercial exhibition must begun before March 31, 2002 even for newly built cinema hall/drive-in-cinema/theatre, which claims benefit of tax exemption under this notification dated August 8, 2002, This time, the State Government took specific care in superseding the earlier notification dated February 18, 2002 and period of exemption was extended up to five years with 100 per cent remission of tax in first two years, 90 per, cent, 80 per cent, and 70 per cent, respectively in third, fourth and fifth years. Later notification dated February 25, 2008, which was applicable with effect from August 8, 2002, which in fact would mean that for all practical purposes, notification dated February 25, 2008 would become effective with retrospective effect from August 8, 2002 and thereby the slab was als....
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....g 100 per cent tax exemption for a period of five years and the, licensing authority also relying thereon, issued the licences containing, stipulation with regard to admission fee and indicated therein nil entertainment tax. Even if what is contended by the Revenue that first notification dated March 15, 1996 issued by the, Government was general notification covering cinema hall and the. subsequent notifications dated February 18, 2002 and August 8, 2002 covered multiplex, cinema halls, being special in nature, is accepted, then also the fact remains, that at the time when the benefit of first .notification was extended, to the Revenue, there was no specific notification available for multiplex, cinema halls and therefore newly built cinema hall was rightly understood, to have been included multiplex cinema hall. Though the definition of "multiplex cinema hall" has not been provided anywhere and this even if this court were to uphold the contention that in the absence of any definition, common parlance meaning thereof has to be preferred, but that can be done if only there was no notification for the earlier period whereas, in the present case, there is a general notification, wh....
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....6 was applied to the assessee in the present case, unless it was specifically superseded or held to have been not been applicable or otherwise, condition of licence granted to the assessee to run the multiplex cinema hall was not altered, the question of levy of tax could not be arisen. In the facts of the case, therefore the argument of strict construction may not be available to the Revenue. In Entertainment Tax Officer I v. Ambae Picture Palace [1995] 96 STC 338 (SC), the Government of Andhra Pradesh formulated a scheme for levy of entertainment tax of gross collection capacity per show from March 23, 1984 to September 6, 1984. On change of Government, the new Government promulgated Ordinance with effect from September 7, 1984, restoring thereby the tax to its original slab for admission to entertainment. Again, on change of Government, new Government issued Ordinance dated October 25, 1984 making it applicable with retrospective effect from September 7, 1984 reintroducing payment of entertainment on the basis of gross collection capacity of the show. The Andhra Pradesh High Court on a writ petition held the retrospective amendment vide Ordinance dated October 25,1984 to be unr....
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....cate cancelled rather than conferring upon itself the jurisdiction to cancel the same. Full Bench of the Andhra Pradesh High Court in Panchalingal Carbonic Gas Pvt. Ltd. [2005] 141 STC 161 (AP) [FB] held that on account of subsequent cancellation of exemption certificate, the assessee could not be held to pay the tax, which he had not collected because it was prohibited from collecting the tax. The assessee could not be compelled to pay the tax, which it did not collect. Liability to pay the said tax would arise only from the date initial orders become operative. In Balaji Computers [2007] 5 VST 120 (SC), exemption was granted to items in entry in Schedule relating to computers and computer peripherals. Thereafter, the authorities issued notices to the dealers proposing to levy turnover tax on parts of computers and parts of computer peripherals. High Court held them exempted from the levy of tax. Affirming High Court view, the Supreme Court held that even assuming that there was a doubt that the language of the notification admitted of two views and was not clear, the view which was beneficial to the assessees had to be taken. The Supreme Court has expressed similar view in Maur....