AI OCR 
TaxTMI 
TaxTMI 
TaxTMI 
2021 (3) TMI 30
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.... company is duly registered under the M.P. Vat Act, 2002 with effect from 12/11/2009. 3. The Government of Madhya Pradesh introduced a policy on Integrated Family Entertainment Centres (Multiplex Complexes) with an object of improving the quality and facility of cinema halls in the State. The said policy came into being with effect from 25/10/2001 which provides for establishment of multiplex complexes within 10 kilometer of municipal limits of four major cities of Madhya Pradesh including Indore. Certain tax exemption and other concessions have been given to encourage the establishment and growth of said multiplexes. The petitioner has filed copy of said policy (Annexure P/1). 4. Shri Sumit Nema, learned Sr. Counsel for the petitioner urged that the government passed entertainment tax exemption policy to attract investment in the multiplex with a view to promote the opening of fully developed multiplexes. 5. The Department of Commercial Tax (Department of Excise), Government of M.P introduced the promotional scheme as per notification dated 7/10/2008 (hereinafter called 'exemption notification') (Annexure P/2). The said notification grants exemption for five years to multiplexe....
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....ner (Revenue), Indore. The said authority convened a divisional level meeting by issuing the letter dated 24/12/2011 (Annexure P/11). The meeting was ultimately convened on 4/1/2012 in the office of Dy. Commissioner (Revenue), Indore in the Chairmanship of the Divisional Commissioner (Revenue), Indore. In furtherance of decision taken by the said Divisional Level Committee, the order dated 16/3/2012 (Annexure P/12) was passed whereby exemption was granted to the petitioner from payment of entertainment tax and electricity fee for a period of five years commencing from 24/12/2009. The stand of petitioner is that the problem arose when a letter dated 5/8/2013 (Annexure P/13) was written by learned Commissioner, Commercial Tax. For the first time, in this letter it is stated that it is not clear whether a multiplex cinema operator who operates such cinema in the premises of mall should be the rightful beneficiary of exemption from payment of entertainment tax. The clarification/guidance is sought for from Additional Chief Secretary, Department of Commercial Tax, Government of M.P. 8. The Additional Chief Secretary aforesaid never issued any clarification and doubt so raised in the co....
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....on a Kerala High Court judgment reported in 1986 SCC Online KER 345 (Deputy Commissioner Vs. Raghavan) it is urged that the exemption was given by assigning a wide meaning to the provision and owner and lessee were found entitled to get the benefit of exemption. (1997) 5 SCC 482 is relied upon to contend that in the context the word 'owner' is used, it must be given a wide meaning and must include a lessee. Lastly (2005) 6 SCC 292 is relied upon to contend that the Court can go behind the notification to examine the real purpose of the provision. 12. Shri Pushyamitra Bhargav, learned Addl. Advocate General contended that petitioner has an efficacious alternative remedy against the impugned order. The petitioner may be relegated to avail the said remedy. Apart from this, learned AAG submits that pursuant to the Notification dated 07/10/2008 (issued as per Act of 1936), on the same date a policy was introduced. The policy dated 07/10/2008 is placed on record as Annexure P/2. Great emphasis is laid on the language employed on the subject of covering letter dated 07/10/2008 wherein the Commercial Tax Department mentioned that the policy is meant for construction/establishment of multi....
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....Court reported in 1970 (2) SCC 355 (Hriday Narain vs. ITO Bareilly), this Court came to hold as under: "There is no dispute with the proposition that when an alternate remedy is available then normally aggrieved party should be relegated to his ordinary remedy provided under the statute. But there is another well known principle of law enunciated by the Supreme Court. In Hirday Narain v. Income Tax Officer, Bareilly, (1970) 2 SCC 355 : AIR 1971 SC 33, the Supreme Court has held in categoric terms that if a petition is entertained and during the pendency of the petition the remedy for seeking alternate remedy expires then the petitioner should be heard on merits and the parties should not be relegated to remedies under the statute." (Emphasis Supplied) In this view of the matter, we are not inclined to relegate the petitioner to avail the alternative remedy. 16. The parties during the course of arguments placed reliance on certain provisions of the Act of 1936. The relevant provisions read as under: 2(f) "proprietor" in relation to any entertainment, includes any person responsible for or for the time being incharge of the management thereof; 3 Entertainment Duty payable by....
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....me Court in the case of Dilip Kumar and Company(supra), exemption notification must be interpreted strictly. In the event of any ambiguity in exemption notification, the benefit of ambiguity cannot be claimed by the subject. It must be interpreted in favour of the revenue. Thus, the pivotal question is as to what is the nature of exemption notification/provision and whether it gives benefit of exemption of Entertainment Tax to a 'lessee'. 17. The notification dated 07.10.2008 was issued in exercise of powers conferred by Section 7 of the Act of 1936. On the same date, an executive instruction in the shape of policy (Annexure P/2) was issued clauses of which were heavily relied upon by Shri Bhargava. Indisputably, neither the notification dated 07.10.2008 nor the policy which is issued as executive fiat contains any definition of 'proprietor' (Lokeh). Thus, to ascertain the meaning and definition of proprietor, the Court needs to look into the definition clause contained in the Act of 1936 namely; Section 2(f), reproduced hereinabove. In the considered opinion of this Court, if present petitioner is covered by definition of 2(f), he can certainly claim the benefit of exemption. Thi....
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....ng, order impugned was set aside and the matter was remitted back to the respondents to take a fresh decision in the light of the judgment. 21. The Explanation to Rule 5 which was subject matter of consideration before CG High Court was still pregnant with some description regarding 'Swami' whereas administrative instruction/policy in the instant case is silent on this aspect. In this backdrop, we are of the view that 'definition' contained in the Parent Act of 1936 must be the basis for determining whether petitioner is entitled to get the benefit of exemption. 22. In our country, the hierarchy of laws is as follows: (1) The Constitution of India. (2) The Statutory Law which may be either Parliamentary Law or Law made by the State Legislature. (3) Delegated or subordinate legislation, which may be in the form of Rules made under the Act, Regulations made under the Act, etc. (4) Administrative orders or Executive Instructions without any statutory backing. See 2006 (12) SCC 583 (Ispat Industries Ltd. vs. Commissioner of Customs). This is equally settled that if there exists any conflict between the provisions of the Act and the provisions of Rules or Executive Instruct....
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....n the argument of Shri Nema that benefit of exemption must be extended in favour of a lessee. Moreso, when indisputably the Entertainment Tax is paid by the lessee only. 24. As per the policy of exemption, the application of exemption needs to be examined by a Committee of high ranking officers. The application dated 08.04.2010 is signed by Shri Gurjeet Singh Chhabra. However, the opening sentence of application shows that it is preferred on behalf of C-21 Mall, Satyam Cineplexes Ltd. Shri Chhabra signed the application as a Proprietor/Managing Director of Satyam Cineplexes Ltd. The Committee constituted as per the policy, examined the various facets and opined as under: In view of the recommendations, the following decision was taken on 16.03.2012 (Annexure P/12): A conjoint reading of the recommendations and the consequential order dated 16.03.2012 (Annexure P/12) makes it crystal clear that the exemption was decided to be given to Satyam Cineplexes Ltd. Putting it differently, the exemption order specifically contains the name of Cineplex i.e. Satyam Cineplexes in whose favour the decision to grant exemption was taken. 25. The matter may be viewed from another angle. In the ....