AI Drafter 
TaxTMI 
TaxTMI 
2019 (3) TMI 1739
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...., North Goa, Panaji in Civil Suit No.33/2007 instituted by the Respondent-Prakash K. Kothari (PKK). 5. By the impugned judgments and decrees, in the two suits the learned District Judge, North Goa, Panaji has directed the Appellants ( original Defendants) to pay the Respondents ( original Plaintiff ) subsidy equal to entertainment tax actually paid by the Respondents in respect of their multiplex theatres, in terms of " The Goa Entertainment Tax based Subsidy for Cinema Houses (Theatres) Scheme, 2004" ( the said Scheme ). Aggrieved by such judgments and decrees, the Appellants ( original Defendants ) have instituted these two appeals. 6. Mr. Faldessai, learned Additional Government Advocate for the Appellants submits that the Scheme is to be read in its entirety, instead of overemphasizing on clause 4 of the said Scheme. He submits that from the reading of the said Scheme in its entirety, it is clear that the said Scheme was formulated to incentivize the existing theatres, which were in a bad shape, to upgrade themselves on account of oncoming International Film Festival of India (IFFI). He submits that the said Scheme was never intended to apply to new multiplexes already eq....
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.... clearly erred in decreeing the suits instituted by the Respondents. 11. For all these reasons, Mr. Faldessai submits that the impugned judgments and decrees made in favour of the Respondents are liable to be set aside and the suits instituted by the Respondents are liable to be dismissed. 12. Mr. S. G. Desai, learned Senior Advocate for the Respondent in First Appeal No.207 of 2008 and Mr. Y. Nadkarni, learned counsel for the Respondent in First Appeal No.213 of 2008 defend the impugned judgments and decrees on the basis of reasoning reflected therein. They submit that clause 4 of the said Scheme refers to eligibility. They submit that there can be no dispute that the multiplexes established by the Respondents stand covered under the provisions of the said Scheme as was admitted by DW1 and accepted by the learned District Judge in the impugned judgments and decrees. 13. Mr. Desai and Mr. Nadkarni point out that there was an endorsement made by the then Chief Minister of the State of Goa on the file clearly indicating that the said Scheme is applicable to new multiplexes. They submit that this endorsement/decision of the Chief Minister is reflected in the modified Scheme. ....
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....inment Tax based subsidy for Cinema Houses (Theatres) Scheme, 2004. The Government of Goa is hereby pleased to frame a Scheme for granting Entertainment Tax based subsidy for cinema houses in the State of Goa, as follows, namely:- 1. Short title, commencement and duration.--- (1) This Scheme be called The Goa Entertainment Tax Based Subsidy for Cinema Houses (Theatres) Scheme, 2004. (2) It shall come into force with effect from 22.11.2004 and remain in force upto 21.11.2009. 2. Introduction.-- The Entertainment Industry in the State of Goa is in bad shape and requires support from the Government by way of incentives and concessions. International Film Festival of India will be held in Goa commencing from 29.11.2004. In view of this International Film Festival, the public theatres are required to be upgraded to the required standard. Arrangement for granting interest free loan to Cinema Halls/ Theatres for their development and upgradation of their physical infrastructure is being made by the Government. A proposal for reimbursement of entertainment tax collected and paid by theatres as subsidy on 100% basis for a period of five years was....
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..... Separate application shall have to be made for every cinema theatre. The application for first claim period after the commencement of the Scheme, however, shall cover the period commencing from 22-11-2004 and ending with 31-3-2005. The application in this case should be filed on or before 15th April, 2005. Delayed claim as well as payment not done shall not be added to the next claim and no claim shall lie in that respect. (2) The Cinema theatre which avail interest free loan from financial institution shall have to file a declaration alongwith its application for claim of subsidy authorizing the Commissioner of Entertainment Tax to remit the amount of admissible subsidy to the financial institution for being adjusted towards repayment of the interest free loan availed till such loan is fully repaid. (3) The Commissioner of Entertainment Tax shall be competent authority to entertain and sanction subsidy claim in accordance with this Scheme. The Commissioner on being satisfied with the correctness of the claim shall make an order sanctioning the amount claimed which will be disbursed in accordance with Treasury Rules and scope of this Scheme. 8. Other Co....
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....the main objectives (SIC) of the Scheme is to provide financial support to the "existing cinema theatres for creating required infrastructure and also to assist them to repay interest free loan, if any, availed by them and to help them to continue their business". 21. This is followed by clause 4 styled as "Eligibility". This clause states that the said Scheme is applicable to all cinema halls/theatres that are covered under the Goa Entertainment Tax Act, 1964 until 21st November, 2009 and having valid licence for exhibition under the Cinematograph Act, 1952 and under the Goa, Daman and Diu Cinematograph Rules, 1965. This clause provides that the benefit however will stop from 22nd November, 2009, irrespective of the amount and period of subsidy claimed by the applicant. Further, this clause provides that the subsidy due upto 21st November, 2009 will be processed and disbursed after the expiry of the Scheme. 22. Clause 5 of the said Scheme adverts to "Quantum of Subsidy", clause 6 refers to "Mode of Payment", clause 7 refers to the "Procedure for filing application and settlement of claim", clause 8 refers to "Other Conditions", clause 9 refers to "Head of Account to which th....
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....t. 26. The said Scheme has to be read and construed in its entirety. Clauses of the said Scheme have to be read and construed in harmony with one another. Overemphasis on clause 4 of the said Scheme must not be at the cost of entire structure of the said Scheme or for that matter at the cost of clauses 2 and 3 of the said Scheme which explain the precise purpose for which the said Scheme was formulated in the first place. This manner of reading clause 4 of the said Scheme, will possibly frustrate the entire purpose and objectives of the said Scheme not to mention that same will unjustly enrich the Respondents in the present case. 27. Though, clause 4 of the said Scheme is styled as "Eligibility" that by itself, does not mean that every cinema hall/theatre will cover under the Goa Entertainment Tax Act, 1964, is automatically entitled to subsidy by way of 100% reimbursement of entertainment tax for a period of five years. Actually, clause 4 of the said Scheme states, what is obvious. Unless and until a cinema hall/theatre is covered under the Goa Entertainment Tax Act, 1964, there would arise no question of such cinema hall/theatre paying the entertainment tax to the Governmen....
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....s persons". Such allotment was in fact made in favour of the Respondents before the Supreme Court, who were affluent businessmen residing and owning property in the city of Kanpur. The Additional Collector, subsequently revoked such allotment but the Allahabad High Court, restored such allotment on the basis of literal interpretation of the expression "landless persons". The Allahabad High Court reasoned that since the Respondents did not own agricultural land in the villages, they were "landless persons" as defined under the said Act. 32. The Supreme Court reversed the Allahabad High Court and held that resort to literal interpretation in such circumstances was not proper, as otherwise the basic objectives of the Scheme formulated by the said Act for allotment of agricultural land to the landless persons involved in agriculture, would be totally frustrated. 33. The Supreme Court, for the purpose of interpretation referred to the following Shloka : "Upkramop Sanharo Abhyaso Uppurwatta Falam Arthwadoppatti Ch Lingam Tatparya Nirnaye" 34. The Supreme Court, in paragraph 13 explained that this in short means that when you have to draw the conclusion from a writing yo....
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....es to the bare reading of the Statute itself to go simply by the words, giving them their grammatical meaning and that was all. That view was prevalent in the l9th century and still has some supporters today. But it is wrong in principle. So therefore, it has been held very rightly that you can inquire into the mischief which gave rise to the Statute, to see what was the evil which it was sought to remedy. 37. On the basis of aforesaid authority of the Supreme Court, we are satisfied that the said Scheme will have to be construed in its entirety. Clauses of the Scheme will have to be read and construed in harmony with one another. Overemphasis on clause 4 of the said Scheme alone, will not be proper. Thus, construed, it is quite clear that the said Scheme was formulated to assist the existing cinema halls/theatres which were in bad shape and which required Government support by way of "incentives and concessions" in order to upgrade themselves upto the required standard for IFFI which was to commence shortly. The Scheme was not formulated to give a bonanza to brand new multiplexes equipped with all upgraded facilities. 38. The existing cinema halls/theatres, on account of the....
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....e is formulated and notified Scheme, its interpretation will have to be on the basis of such formulated and notified Scheme to be read and construed in its entirety in preference to notings or observations in the file. According to us, upon harmonious construction of clauses 2, 3 and 4 of the said Scheme, we cannot say that brand new multiplexes already having the upgraded facilities were not also to be covered under the said Scheme. 43. The notings of the Chief Minister perhaps suggest that the said Scheme is not restricted only to cinema halls/theatres which may also include the multiplexes. Notings however cannot be interpreted or construction to mean that the said Scheme was to extend even to brand new multiplexes with upgraded facilities. Notings/observations cannot be construed to mean that the multiplexes constructed on the Government land by agency of the Government should also be eligible for benefit under the said Scheme. 44. The learned District Judge in the present case has completely ignored the clause 11 of the said Scheme, which, in terms, provides that no inherent right shall arise out of the said Scheme in favour of any person. Notwithstanding such clause, it....