TaxTMI 
TaxTMI 
2023 (12) TMI 365
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....own. AA That the Hon'ble Court be pleased to issue a writ of mandamus, or a writ in the nature of mandamus, or any other appropriate writ, direction, or order under Article 226 of the Constitution of India directing the Respondent No. 1 to refund Duty Amount i.e. Rs. 1,52,45,923/- and any applicable interest as per the discretion of the Hon'ble Court. D-1 In the alternative if it being held that the entertainment duty is payable for the water sports activity as undertaken by the petitioners than this Honourable Court be pleased to issue a writ of mandamus or a writ in the nature of mandamus, or such any other appropriate writ, direction or order under Article 226 of the Constitution of India directing the respondents to submit list of water sports activity operators who have been granted permission by Maharashtra Maritime Board to undertake water sports activity and liable to pay entertainment duty from 1st May 1998 to undertake water sports activity and not taxed under the provisions of the Bombay Entertainment Duty Act, 1923 under the provisions of the Bombay Entertainment Duty (Amending) Act, 1998 when it came into force along with the amount recoverable from them as Enter....
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....ejected the said appeal and confirmed the demand raised. The said appeal order was challenged in revision and on 10th June 2005, the Revisional Authority passed an order upholding the contention of the petitioners that they were entitled to exemption under Section 3 (5A) of the Entertainment Duty Act for a period of 3 years and further 50% remission for a period of 2 years thereafter. The consequence being, after the period of 3 years of exemption, the petitioners have deposited the entertainment duty, of which the petitioners seeks refund in the present petition. Being aggrieved by the said order passed by the Revisional Authority, the petitioners have filed the present petition seeking refund of entertainment duty deposited with the respondents for the period post expiry of exemption period of 3 years. We are informed by the petitioners that at present they have closed all water activities at Chowpatty, Mumbai. 4. Submissions on behalf of the Petitioners :- The learned senior counsel for the petitioners has admitted that the Petitioner is covered by Section 3 of the Bombay Entertainment Duty Act which imposes entertainment duty on the activities specified therein, which inter al....
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....s at Gateway of India. The petitioners also stated in its rejoinder that none of the persons to whom licenses have been issued by the Maharashtra Maritime Board are registered under the provisions of the Entertainment Duty Act. The petitioners also relied upon the reply of the respondents. The sum and substance of the submission of the petitioners is that since the persons engaged in similar activities are not being subjected to the entertainment duty, the petitioners are being discriminated by making to pay entertainment duty and therefore, the duty deposited by the petitioners should be refunded. 7. The petitioners further relied upon the Legislative Assembly debates on a bill as presented before the Legislative Assembly to amend the Bombay Entertainment Act, 1923. In this context, our attention was drawn to the speech of an opposition member and reply of the Minister. The contention of the petitioners is that based on such debate, on the floor of the assembly, the intention of the legislature was to levy entertainment duty only in amusement/water parks in which water activities are carried on and not to the activities of the petitioners, because their water sports activities ar....
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....ores is made after the petition was admitted and under protest. It is the contention of the petitioners that since the said deposit is made without prejudice and subject to the outcome of the present petition, the contention of the respondents that the petitioners cannot claim negative equality is not correct. It was further contended that since the intent as per the legislative debate is to tax amusement park in which water activities are provided, the principle of negative equality contended by the respondents State would not be applicable. The petitioners also furnished a statement which is in Form B to contend that the petitioners have not collected the Entertainment Duty from the user of its facilities and therefore, the principle of unjust enrichment would not be applicable. ANALYSIS AND CONCLUSION:- 11. The question which arises in the present petition is as to whether the Petitioner on the issues as urged, can justify in invoking Article 14 of the Constitution of India, to claim refund of duty deposited on the ground that the respondents have not collected duty from similarly placed persons ? 12. Scheme Of The Act - Before we dwell upon the reasoning, it would be necess....
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....her situated within or outside the amusement park, shall be 15 per cent. of the payment made for admission to the water sports activity including payment made for admission for water games and sports, whether charged separately or not. (emphasis supplied) (e) Section 3 (5A) (a) provides that notwithstanding anything contained in sub-section (2) or in any other provisions of this Act but, subject to the provisions of clause (b), on and with effect from the date of coming into force of the Bombay Entertainments Duty (Amendment) Act, 1998, there shall be levied and paid by the proprietor to the State Government, the entertainment duty in respect of any water sports activity as follows, namely :- (i) for the first three years from the date of commencement of the water sports activity, no duty ; (ii) for the subsequent, two years, at the rate of fifty per cent. of the rate of duty leviable under clause (b) of sub-section (1) or, as the case may be, sub-section (2) of section 3 ; (iii) from the sixth year, full amount of entertainments duty leviable at the rate specified in clause (b) of sub-section (1) or, as the case may be, sub-section (2) of section 3. (f) Section 4....
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....d to show that such operators were having sports licences, similar to that of the petitioners, much less to implead them as parties. 15. The Petitioner's contention is to the effect that on one hand, the operators at the Gateway of India were not being levied with the entertainment duty, whereas the petitioners were subjected to levy of entertainment duty under the Act and for such reason, the petitioner needs to be put at par with the operators at the Gateway of India. 16. Such contention of the petitioners in legal terms can be considered as a plea of the petitioners to assert a negative equality, for the reason that the petitioner is questioning the action of the State Government in the levy of the entertainment duty only qua the petitioners, and the same being not levied on the operators at the Gateway of India. Conversely, the plea is that the action of the State Government not to levy such duty on the operators at the Gateway of India is illegal and the petitioners needs to be placed in a similar position as that of the Gateway of India operators. 17. It is difficult to accept such case of the petitioners for more than one reason; firstly, as noted above such contention is....
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....the present case clearly demonstrate that the petitioners' case utterly fails when tested on such well established parameters. Thus, the acceptance of the petitioner's contention that the petitioner should be given a relief because the State has not recovered tax from similar activities carried on by others would amount to calling upon this Court to give relief on the basis of negative equality. It is hence trite law that equality cannot be claimed on any illegality. It cannot be enforced by a Court in a negative manner. 18. We can also test the submissions of the petitioners by way of an illustration. Assuming that Mr. A is regularly paying income tax on its business activity. Mr. B is carrying out the same business activity and earning income but is not paying any tax nor does the Revenue Authority takes any action against Mr. B for recovery of tax. In such scenario, Mr. A cannot file a writ petition against the State to claim the refund of the amount which he has already paid on the ground that since the State has not recovered the tax from Mr. B, hence there is a violation of Article 14 of the Constitution of India qua him and therefore, Mr. A should also not pay any tax or ge....
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....of. Such person cannot be discriminated to. deny the same benefit. The rational relationship and legal back up are the foundations to invoke the doctrine of equality in case of persons similarly situated. If some person derived benefit by illegality and had escaped from the clutches of law, similar persons cannot plead nor court can countenance that benefit had from infraction of law and must be allowed to be retained. Can one illegality be compounded by permitting similar illegal or illegitimate or ultra vires acts? Answer is obviously no. 28. A host of other decisions in that context have laid the same principle. It is not necessary to burden the judgment any further. Suffice to hold that the illegal allotment founded upon ultra vires and illegal policy of allotment made to some other persons wrongly, would not form a legal premise to ensure it to the respondent or to repeat or perpetuate such illegal order, nor could it be legalised. In other words, judicial process cannot be abused to perpetuate the illegalities. Thus considered, we hold that the High Court was clearly in error in directing the appellants to allot the land to the respondents." 20. Similar view on negati....
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....ra) goes contrary to the petitioners' case wherein the Court had observed that "the Constitution does not assure uniformity of decisions or immunity from merely erroneous action, whether by the Courts or the executive agencies of a State." 24. Now, we consider the case of the petitioner on the "under protest payment." It is contended by the petitioners that since the payment was made under protest, the principle of negative equality would not be applicable. We may observe that the present petition is filed on 22nd August 2005. This Court in its order dated 28th July 2022 recorded the statement of the petitioner that pursuant to an interim order passed on 10th June 2005 the petitioners has deposited a sum of Rs. 1,52,45,923/-. We fail to understand as to how this sum was deposited on 10th June 2005, the petitioner has under the orders of the Court when petition itself was filed on 22nd August 2005. The petitioners in the amended petition in paragraph 14 (I) have averred that payment is made under the orders of the Revenue Minister dated 10th June 2005 and interim order dated 11th October 2005 of this Court. This Court on 11th October 2005 has only issued Rule and observed that impl....
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....nd not the activities conducted by the petitioners. 27. In considering such plea, the first and foremost approach of the Court would be to plainly look at the legal provisions as contained in the provisions of the statute as they stand, and if there is any need for an external aid, so as to attribute any meaning to the legislative provisions then recourse can be had to such external material which in a given case may include legislative debates. 28. The Act itself distinguishes between amusement park and the water activities. There are separate provisions dealing with the amusement park and the water sports activity. If the legislative intent was to cover only water sports activity by amusement park then the Acts would not have made a distinction between the amusement park and water sports activity. The levy is on the activities and not on the entity carrying on the activities. Therefore, whether water sports activity is carried on by amusement park or by non amusement park, both would be liable to pay the entertainment duty. Section 2 (a-1) defines "amusement park" to mean a place wherein various types of amusements are provided on permanent basis on payment for admission. Secti....