{"id":164417,"date":"2008-08-06T00:00:00","date_gmt":"2008-08-05T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/ballarpur-paper-industries-vs-state-of-on-6-august-2008"},"modified":"2019-03-02T06:31:44","modified_gmt":"2019-03-02T01:01:44","slug":"ballarpur-paper-industries-vs-state-of-on-6-august-2008","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/ballarpur-paper-industries-vs-state-of-on-6-august-2008","title":{"rendered":"Ballarpur Paper Industries vs State Of on 6 August, 2008"},"content":{"rendered":"
Bombay High Court<\/div>\n
Ballarpur Paper Industries vs State Of on 6 August, 2008<\/div>\n
Bench: Anoop V.Mohta, C. L. Pangarkar<\/div>\n
                                                   1\n\n               IN THE HIGH COURT OF JUDICATURE AT BOMBAY\n                         NAGPUR BENCH AT NAGPUR\n\n\n\n\n                                                                                               \n                          WRIT PETITION NO. 2868 OF 1993\n\n\n\n\n                                                                       \n          Ballarpur Paper Industries,\n          a Company registered under the\n          Indian Companies Act, 1913 and\n\n\n\n\n                                                                      \n          deemed to be registered under the\n          provisions of the Companies Act, 1956,\n          Having its registered office at Ballarpur,\n          tq. dist. Chandrapur.                                           .....PETITIONER\n\n\n\n\n                                                        \n                                ...V E R S U S...\n                                      \n    1.    The State of Maharashtra\n          Revenue and Forest, Mantralaya,\n                                     \n          Madam Cama Road, Bombay, 400 032.\n\n    2.    The Collector, Chandrapur,\n            \n\n\n    3.     Additional District Magistrate,\n           Chandrapur.                                                    .....RESPONDENTS\n         \n\n\n\n    -------------------------------------------------------------------------------------------------\n    Mr. S. V. Manohar, Advocate for the petitioner.\n    Mr. P. D. Kothari, A.G.P. for the respondents.\n\n\n\n\n\n    -------------------------------------------------------------------------------------------------\n                                                WITH\n\n                         WRIT PETITION NO. 2729 OF \/1993\n\n\n\n\n\n          Power Grid Corporation of India Ltd.\n          a Company incorporated having its\n          Office at Hemkunt Chambers,\n          89, Nehru Place, New Delhi.                                     .....PETITIONER\n\n\n\n\n                                                                       ::: Downloaded on - 09\/06\/2013 13:39:48 :::\n                                                    2\n\n                                ...V E R S U S...\n\n\n\n\n                                                                                               \n    1.    The State of Maharashtra\n          Revenue and Forest Department,\n\n\n\n\n                                                                       \n          Mantralaya, Madam Cama Road,\n          Bombay, 400 032.\n\n    2.     Additional District Magistrate,\n\n\n\n\n                                                                      \n           Chandrapur, tq. dist. Chandrapur.                              .....RESPONDENTS\n    -------------------------------------------------------------------------------------------------\n    Mr. S. C. Mehadia, A. S. Mehadia, Advocates for the petitioner.\n    Ms. K. S. Joshi, A.G.P. for the respondents.\n\n\n\n\n                                                        \n    -------------------------------------------------------------------------------------------------\n                                      \n    CORAM:- ANOOP V. MOHTA & C. L. PANGARKAR, JJ.\n\n    Date of Reserving the Judgment :- July 11, 2008\n                                     \n    Date of Pronouncing the Judgment:- August 6, 2008\n            \n\n    J U D G M E N T (Per:- Anoop V. Mohta, J.)\n<\/pre>\n
    1.                 The petitioner has challenged an order passed by<\/p>\n
    Additional District Magistrate, Chandrapur dated 14.09.1993 under<\/p>\n
    Section 3(4) and 3 (a) (a) of the Bombay Entertainments Duty Act,<\/p>\n
    1923 (for short the “Act”) by which the petitioner is directed to pay<\/p>\n
    entertainment tax and surcharge at the rate of 25% and 10 % on the<\/p>\n
    total cost of Rs. 25,00,000\/- incurred\/spent for Dish Antenna, Cable<\/p>\n
    Television pursuance to an amendment to the Bombay Entertainments<\/p>\n
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\n                                        3<\/span><\/p>\n
    Duty Act, 1923 dated 25.12.1992 vide Ordinance No. XII of 1992, the<\/p>\n
    Bombay Entertainments Duty (Amendment) Ordinance, 1992 and also<\/p>\n
    challenged the constitutional validity of the Amended Act.\n<\/p>\n
    2.            By order dated 06.12.1993, this Court admitted the writ<\/p>\n
    petition and granted an interim relief in terms of prayer clause (C),<\/p>\n
    thereby has stayed the effect and operation of the impugned order and<\/p>\n
    further recovery of the entertainment duty as per the impugned order.\n<\/p>\n
    3.            The petitioner is a registered Company, who is running a<\/p>\n
    large scale paper unit at Ballarpur, district Chandrapur and is having<\/p>\n
    large number of employees. A residential colony at Ballarpur, district<\/p>\n
    Chandrapur has been established wherein accommodation is provided<\/p>\n
    to its selective employees. It is residential colony established by the<\/p>\n
    petitioner.\n<\/p>\n
    4.            Some time in the month of June-1992, the petitioner<\/p>\n
    purchased a Dish Antenna (Antenna), which receives national and<\/p>\n
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\n                                           4<\/span><\/p>\n
    international satellite transmissions.       The petitioner has provided<\/p>\n
    connection of this Antenna through the cable to the respective quarters<\/p>\n
    of its employees, with a view to provide facilities of television<\/p>\n
    transmissions to its employees.           The petitioner has spent about<\/p>\n
    Rs.25,00,000\/- for commissioning and installing the said Antenna of<\/p>\n
    its own for giving connection to its employees. The petitioner incurred<\/p>\n
    the said expenses without taking any contribution of any kind<\/p>\n
    including for initial establishment or installation or monthly payments<\/p>\n
    for providing the services of transmissions through cable to their<\/p>\n
    respective televisions.   The said Antenna was fully installed in the<\/p>\n
    month of November-1992 and connections were provided in the<\/p>\n
    month of October-1992.        The said expenses, borne for the Dish<\/p>\n
    Antenna, are shown in the account books of the Company.                       The<\/p>\n
    petitioner   has   been   utilizing   the    Antenna   to     view      satellite<\/p>\n
    transmissions only and was not using the said Antenna for exhibiting<\/p>\n
    films or movies or any such other purposes.\n<\/p>\n
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\n                                         5<\/span><\/p>\n
    5.           In the year 1923, the State of Bombay enacted the<\/p>\n
    Bombay Entertainments Duty Act, 1923 being Bombay Act No. I of<\/p>\n
    1923 (for short “the Act”).     The Act sought to impose duty on<\/p>\n
    entertainments    including   any       exhibition,      performance            and<\/p>\n
    amusement, gaming of sport to which person admitted on payments.\n<\/p>\n
    The said entertainment duty was sought to be levied on all payments<\/p>\n
    for admissions to any entertainment.         The said Act came to be<\/p>\n
    amended in extenso in the year 1984 by Maharashtra Act No. XI of<\/p>\n
    1984 which substituted the definition of “entertainment” by amending<\/p>\n
    Section 2(A) of the Bombay Entertainment Duty Act.                  By the said<\/p>\n
    amendment, the Explanation was added to Section 2(a) which stated<\/p>\n
    that exhibition would include any exhibition by cinematograph<\/p>\n
    including video exhibition and further exhibition with the expression<\/p>\n
    ‘game’ would include video game played with the aid of machines<\/p>\n
    which is operated electronically, mechanically or otherwise. Section 2<\/p>\n
    (d) defines admission to an entertainment include to admissions to<\/p>\n
    any place in which entertainment is held. The said Act was further<\/p>\n
    amended by Maharashtra Act No. III of 1987 with effect from<\/p>\n
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\n                                        6<\/span><\/p>\n
    01.01.1987 by which Section 3(1) (a) was added which sought to levy<\/p>\n
    duty in the case of video game as well. Section 2 (f) was amended by<\/p>\n
    the said Act which defines entertainment duty or a duty in respect of<\/p>\n
    any entertainment to mean a duty levied under sub-section (1) of 1(a)<\/p>\n
    of Section 3.\n<\/p>\n
    6.              Section 3 is the charging section which authorizes the<\/p>\n
    State Government to levy and recover a duty on all payments for<\/p>\n
    admission to any entertainment. Section 3-AA authorizes the State<\/p>\n
    Government to impose a charge on the entertainment duty.\n<\/p>\n
    7.              In exercise of the powers conferred by Clause (1) of<\/p>\n
    Articles 213 of the Constitution of India the Governor of Maharashtra<\/p>\n
    was pleased to promulgate an ordinance, called as “the Bombay<\/p>\n
    Entertainment Duty (Amendment) Ordinance, 1992” on the 25th of<\/p>\n
    December 1992 (for short “the amended Act”). The said ordinance<\/p>\n
    amended Section 2 of the Bombay Entertainment Duty Act to Act No.1<\/p>\n
    of 1923 by inserting Clause (a-1) and (a-2) to section 2.             Section<\/p>\n
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\n                                         7<\/span><\/p>\n
    (a-2), which came to be inserted to section 1, defines “antenna to<\/p>\n
    mean any apparatus which receives television signals which enables<\/p>\n
    viewers to tune into transmissions including national or international<\/p>\n
    satellite transmissions and is enacted or installed for various exhibition<\/p>\n
    on payment by the connection holder of any contribution or<\/p>\n
    subscription or installations and connection charges or any other<\/p>\n
    charges collected in any manner whatsoever.          The said ordinance<\/p>\n
    further inserted after clause (a), clause (aa) which defines cable<\/p>\n
    television to mean a system organised on payment by connection<\/p>\n
    holder of any contribution or subscription or installation\/connection<\/p>\n
    charges or any other charges collected in any manner whatsoever for<\/p>\n
    exhibition of films or movie pictures. Section 3 which is the charging<\/p>\n
    section is also sought to be amened by the ordinance, by which an<\/p>\n
    exhibition by means of any type of antenna or cable television as<\/p>\n
    defined is taxed by imposing of entertainment duty pro rata the<\/p>\n
    payment for admission fees by the proprietor. There is also a circular<\/p>\n
    issued by the State Government dated 04.02.1993 which issues the<\/p>\n
    guidelines for the implemented of the said ordinance.\n<\/p>\n
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\n                                        8<\/span><\/p>\n
    8.            The petitioner probably, in view of the Amended Act,<\/p>\n
    received a communication dated 07.05.1993 from the Collector,<\/p>\n
    Chandrapur, whereby a certain information regarding the Antenna<\/p>\n
    was sought from the petitioner. That was not a show cause notice of<\/p>\n
    any kind under the Act.     The petitioner in reference to the same,<\/p>\n
    provided the information as under:-\n<\/p>\n
             \"1. Total connection installed            ...1880 Nos.\n\n             2.\n                             \n                  Total expenditure                    ...Rs. 25 Lacs.\n\n             3.   Monthly\/Quarterly\/Yearly\n                            \n                  contribution                         ...Nil for the\n                                        entertainment of Paper Mills\n                                        employees on free cost.\n             4.   Whether expenses borne by\n           \n\n\n                  Company.                         ...As per Sl.No. 2.\n        \n\n\n\n             5.   Connection provided outside          ...Nil.\"\n\n\n\n\n\n<\/pre>\n
    9.            The respondents, in spite of the above clarification,<\/p>\n
    passed the impugned order and demanded the tax and surcharge and<\/p>\n
    also threatened to seize and forfeit the said Dish Antenna, if the<\/p>\n
    petitioner failed to pay the amount and also to initiate prosecution<\/p>\n
    under the Act.   The petitioner, therefore, requested the Additional<\/p>\n
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\n                                          9<\/span><\/p>\n
    District Magistrate, Chandrapur to cancel the said demand by<\/p>\n
    explaining their position and resisted the reasoning for the said<\/p>\n
    demand and, therefore, ultimately filed the present petition.\n<\/p>\n
    10.           The said Amended Act\/Ordinance of 1992 is now Act<\/p>\n
    No. X of 1993.\n<\/p>\n
                  The relevant provisions of the Act are as under:-\n<\/p>\n
             Section 2(a-2) “antenna” means an apparatus which
\n             receives television signals which enable viewers to tune<\/p>\n
             into transmissions including national or international
\n             satellite transmissions and is erected or installed for
\n             exhibition of films or moving pictures or series of<\/p>\n
             pictures, by means of transmission of television signals<\/p>\n
             by wire where subscribers’ television sets at the residential
\n             or non-residential place are linked by metallic coaxial<\/p>\n
             cable or optic-fibre cable to a central system called the
\n             head-end, on payment by the connection holder of any
\n             contribution   or    subscription   or   installation        and<\/p>\n
             connection charges or any other charges collected in any
\n             manner whatsoever;\n<\/p>\n
             Section 2[(a) “entertainment” includes any exhibition,<\/p>\n
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\n                                      10<\/span><\/p>\n
     performance, amusement, game or sport to which<\/p>\n
     persons are admitted for payment, [or, in the case of
\n     television exhibition with the aid of any type of antenna<\/p>\n
     with a cable network attached to it or cable television [or
\n     Direct-to-Home (DTH) Broadcasting Service], for which<\/p>\n
     persons are required to make payment by way of
\n     contribution       or     subscription    or   installation          and
\n     connection charges or any other charges collected in any<\/p>\n
     manner whatsoever] [but does not include magic show]<\/p>\n
     [and temporary amusement including games and rides,]<\/p>\n
     Explanation- For the purposes of this clause,-
\n     [(i)       the      expression       “exhibition”      includes       any
\n     exhibition by cinematograph including video exhibition<\/p>\n
     or television exhibition with the aid of any type of<\/p>\n
     antenna with a cable network attached to it or cable
\n     television;]<\/p>\n
     Section 2[(b)           “payment for admission” [in relation
\n     to the levy of entertainments duty, includes-\n<\/p>\n
     (i) to (v) —–\n<\/p>\n
     (vi)       any payment made by a person by way of
\n     contribution or subscription or installation connection<\/p>\n
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\n                                   11<\/span><\/p>\n
     charges or any other charges collected in any manner<\/p>\n
     whatsoever for television exhibition with the aid of any
\n     type of antenna with a cable network attached to it or<\/p>\n
     cable television.\n<\/p>\n
     (vii)       any payment made by a person to the
\n     proprietor of a Direct-to-Home (DTH) Broadcasting
\n     service by way of contribution, subscription , installation<\/p>\n
     or connection charges, or any other charges collected in<\/p>\n
     any manner whatsoever for Direct-to-Home (DTH)
\n     Broadcasting service with the aid of any type of set top<\/p>\n
     box or any other instrument of like nature which
\n     connects television set at a residential or non-residential
\n     place of connection-holder directly to the Satellite; [and]<\/p>\n
     Section 2 [(c) “proprietor”, in relation to an
\n     entertainment, includes any person-\n<\/p>\n
     (i) to (iv) —–\n<\/p>\n
     (v)         responsible for, or for the time being in charge
\n     of, management of providing cable connections from any
\n     type of antenna or cable television,]<\/p>\n
     Section 2 (d) “admission to an entertainment”,
\n     includes    admission   to    any   place   in     which       the<\/p>\n
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\n                                12<\/span><\/p>\n
     entertainment is held [or any place where from the<\/p>\n
     entertainment is provided by means of cable connection
\n     from any type of antenna with a cable network attached<\/p>\n
     to it or cable television[for Direct-to-Home (DTH)
\n     Broadcasting service]]<\/p>\n
     Section 2 (f)    “entertainment duty”, or “duty” in
\n     respect of any entertainment means the entertainment<\/p>\n
     duty levied under section 3;\n<\/p>\n
     Section 3. Duty on payments for admission to<\/p>\n
     entertainment.- (1) There shall be levied an paid to the
\n     State Government on all payments for admission to any
\n     entertainment [except in the case of video games,<\/p>\n
     exhibition by means of any type of antenna or cable<\/p>\n
     television, or exhibition by means of Direct-to-Home
\n     (DTH) Broadcasting service, bowling alley, Gocarting,<\/p>\n
     dance bar, discotheque, amusement park, water sports
\n     activity, pool game] [or tourist bus with video facility] a
\n     duty (hereinafter referred to as “entertainment duty”) at
\n     the following rates, namely:-\n<\/p>\n
                          (Present amended Sections)
\n                                     emphasis added.\n<\/p><\/blockquote>\n
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\n                                         13<\/span><\/p>\n
             Section 3 [(4).\n<\/p><\/blockquote>\n
             Notwithstanding anything contained in sub-section (2) or
\n             in any other provisions of this Act, there shall be levied,<\/p>\n
             and paid by the proprietor to the State Government, the
\n             entertainments duty at 25 per cent of the total payment<\/p>\n
             made by a person or a body of persons, by whatsoever
\n             name called, by way of contribution or subscription or
\n             installation and connection charges or any other charges<\/p>\n
             collected in any manner whatsoever, to the proprietor for<\/p>\n
             the exhibition of films or moving pictures or series of
\n             pictures by means of any type of antenna or cable<\/p>\n
             television.”\n<\/p><\/blockquote>\n
             (The amended section by Ordinance XVI of 1992<\/p>\n
             dated 25\/12\/1992)<\/p>\n
                                                emphasis added.\n<\/p><\/blockquote>\n
    11.           There     is   no   dispute    that   the     petitioner         has<\/p>\n
    incurred\/spent about Rs. 25,00,000\/- in installing the Antenna and<\/p>\n
    the connections for their employees. No charge, whatsoever, is taken<\/p>\n
    and\/or collected at the time of installation and\/or thereafter, of<\/p>\n
    whatsoever nature. There is nothing to justify that the petitioner, at<\/p>\n
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\n                                       14<\/span><\/p>\n
    the relevant time, collected any contribution or subscription or any<\/p>\n
    charges from their employees, to whom they had provided connection.\n<\/p>\n
    The Act, including the Amended Act, provides that the levy is on the<\/p>\n
    subscription and\/or collection received from the connection holders by<\/p>\n
    the connection provider to the extent of 25% of the amount. The levy<\/p>\n
    is only on the receipt of the connection\/subscription and any such<\/p>\n
    charges by the proprietor. Admittedly, no connection charges or any<\/p>\n
    amount whatsoever was received by the petitioner\/the proprietor from<\/p>\n
    the connection holders, who were its employee. Therefore, considering<\/p>\n
    the whole scheme of the Act and the guidelines so issued, we are of<\/p>\n
    the view that the levy, as imposed in the present case, on the total<\/p>\n
    project cost of Rs. 25,00,000\/-, in the facts and circumstances, is<\/p>\n
    contrary to the Act and it is impermissible. It is contrary even to the<\/p>\n
    directives issued by the State Government. The levy of 25% on the<\/p>\n
    project cost is impermissible and not within the scope of the amended<\/p>\n
    Act.   The provisions as referred to above, nowhere permit the<\/p>\n
    respondents to charge or levy such taxes for such connections, which<\/p>\n
    are provided free of costs and\/or without collecting any subsequent<\/p>\n
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\n                                          15<\/span><\/p>\n
    and\/or contribution at the relevant time. The entertainment duty as<\/p>\n
    contemplated is basically, in such circumstances, need to be on the<\/p>\n
    charges\/subscription collected by the connection provider.\n<\/p>\n
    12.              The point in the present facts and circumstances is;\n<\/p>\n
    whether the tax on such entertainments still can be imposed on the<\/p>\n
    provider or receiver as explained by the Division Bench of this Court in<\/p>\n
    Vasant    Madhav<\/p>\n
                           Patwardhan      and    another      ..vs..     State       of<\/p>\n
    Maharashtra and others; 2001 (1) Mh. L. J. 382 in following<\/p>\n
    words:-\n<\/p>\n
              “27.        The next point to be noticed is that it is a well<\/p>\n
              settled principle of law that a tax on entertainment can<\/p>\n
              be imposed by the Legislature on the person providing
\n              entertainment, as indeed on the person receiving<\/p>\n
              entertainment.    In other words, there is no reason to
\n              preclude the legislature from imposing the tax on the
\n              person who provides entertainment. Those who received<\/p>\n
              entertainment are exigible to tax. Those who provide it
\n              are similarly not immune to the taxing net.\n<\/p><\/blockquote>\n
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\n                                       16<\/span><\/p>\n
    13.          From the above, it is clear that the installation and<\/p>\n
    providing transmissions through national or international satellite for<\/p>\n
    exhibition and\/or films or moving pictures of series of pictures as<\/p>\n
    defined above and exhibition with the aid of any type of antenna with<\/p>\n
    a cable network attached to it or cable television falls within the<\/p>\n
    meaning of “antenna”, “entertainment” and “cable television”.              The<\/p>\n
    petitioner is a proprietor, being incharge of management of providing<\/p>\n
    cable connections from any type of antenna or television being a<\/p>\n
    person who contributed of its own and incurred expenses for erecting\/<\/p>\n
    installing the said antenna\/cable television.        The petitioner is<\/p>\n
    providing connections, cable and televisions for such entertainments to<\/p>\n
    their employees, who are receivers of such transmissions.                  The<\/p>\n
    petitioner can be termed as proprietor\/connection provider and the<\/p>\n
    employees as receiver\/connection holder.\n<\/p>\n
    14.           However, still the important facet, based on facts and<\/p>\n
    the law at the relevant time, is that the petitioner Company had<\/p>\n
    installed\/erected the said antenna and cable television and provided<\/p>\n
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\n                                        17<\/span><\/p>\n
    entertainments to their employees free of costs. There is nothing on<\/p>\n
    record to suggest that the petitioner was providing entertainment on<\/p>\n
    payment either by way of contribution or subscription or installment<\/p>\n
    and connected charges and\/or any other charges collected in any<\/p>\n
    manner whatsoever as required within the meaning of antenna,<\/p>\n
    entertainment, though it provided these facilities of entertainments,<\/p>\n
    which are viewed and heard on the television receiving set at<\/p>\n
    residential places of the employees of the petitioner. There is nothing<\/p>\n
    that the petitioner\/so called service provider and\/or proprietor<\/p>\n
    collected any payment by and from the persons, to whom they were<\/p>\n
    providing the services at residential place of the employee. There is<\/p>\n
    further no merit that any payment was made by the employees, who<\/p>\n
    having been permitted to use these cable television facilities for their<\/p>\n
    entertainment includes the expenses incurred by the employer\/<\/p>\n
    petitioner.   There is no material whatsoever on record that any<\/p>\n
    payment was made by such employees to the employer by providing<\/p>\n
    service by way of contribution, subscription, installation or connection<\/p>\n
    charges and\/or charges collected in any manner whatsoever though<\/p>\n
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\n                                        18<\/span><\/p>\n
    they have provided through antenna and cable television all facilities,<\/p>\n
    which connect television sets at residential place, through satellite or<\/p>\n
    such other system even before or after any payment of tax.\n<\/p>\n
    15.           Even as per Section 3 (4) of the amended Act, a charging<\/p>\n
    section, the basic requirement is that there shall be levied and paid to<\/p>\n
    the State Government entertainments duty on all payments for<\/p>\n
    admission. The amount so borne, as per the scheme of the Act, is on<\/p>\n
    entertainments duty out of gross value of the ticket or payment for<\/p>\n
    admission fixed by the proprietor.       As noted, they have levied<\/p>\n
    entertainment tax on the expenses incurred by the petitioner for<\/p>\n
    erection of antenna and other apparatus for securing transmission<\/p>\n
    through the cable network of cable television attached to it for<\/p>\n
    workers. The expenses so incurred by the petitioner-company at the<\/p>\n
    relevant time at the residential complex of its employees does not fall<\/p>\n
    within the meaning of payment for admission and expenses at the<\/p>\n
    relevant time. We are concerned with the provisions and position on<\/p>\n
    the date of the Ordinance i.e. Ordinance No. XII of 1992. We have<\/p>\n
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\n                                       19<\/span><\/p>\n
    also noted that the demand was made by the respondents based upon<\/p>\n
    the Ordinance No. XII of 1992. At that time, the explanation, which is<\/p>\n
    added now by Act 20 of 1998 was not available except a circular and<\/p>\n
    demand as made, which was contrary to then existing scheme of the<\/p>\n
    amended Act.     Therefore, in October-1992 when the expenditure<\/p>\n
    incurred by the petitioner, there was no provision\/no ordinance,<\/p>\n
    which would have permitted the respondents to levy such tax of 25%<\/p>\n
    on the actual expenses incurred, as claimed.\n<\/p>\n
    16.          In view of the facts as referred to above, the contention<\/p>\n
    that petitioner had installed Antenna and incurred Rs.25,00,000\/- and<\/p>\n
    provided connection for its employees, whether free of costs or<\/p>\n
    without collecting any subscription, as they provide entertainment<\/p>\n
    through this antenna the petitioner is liable for entertainment duty is<\/p>\n
    impermissible.   Further, respondent No. 1, who suffered loss of<\/p>\n
    entertainment duty, revenue and it affected the running cinema<\/p>\n
    industry and\/or loss to the revenue and as it would set back to the<\/p>\n
                                                     ::: Downloaded on – 09\/06\/2013 13:39:49 :::<\/span>
\n                                          20<\/span><\/p>\n
    regular cinema shows casing loss on entertainment duty to the<\/p>\n
    Government is also impermissible.\n<\/p>\n
    17.            The Cable Antenna television connection provides in the<\/p>\n
    premises round the clock and provide entertainment to the connection<\/p>\n
    holder and its family and, therefore, the respondents are entitled to<\/p>\n
    collect said tax, have no basis.\n<\/p>\n
    18.            By the present petition, the challenge is also made to the<\/p>\n
    Constitutional validity of the Act in view of the said demand made by<\/p>\n
    the respondents. However, in view of the above and as we are of the<\/p>\n
    view that the demand so made is apparently illegal and beyond the<\/p>\n
    scope, therefore, there is no question of deciding the Constitutional<\/p>\n
    validity. It is rightly not pressed also.\n<\/p>\n
                   In view of above, the submission that the alternate<\/p>\n
    remedy is available under Section 10 of the Act, in the facts and<\/p>\n
    circumstances, is also rejected.\n<\/p>\n
                                                      ::: Downloaded on – 09\/06\/2013 13:39:49 :::<\/span>
\n                                         21<\/span><\/p>\n
    19.            Admittedly, the expenses were incurred some time in<\/p>\n
    June-1992.     Cable networking commenced in October-1992.                   The<\/p>\n
    Ordinance came into force on 25.12.1992 and that later on converted<\/p>\n
    into law in the year 1993.        Therefore, on the date of the said<\/p>\n
    installation, the Ordinance\/Act in question was not in existence. The<\/p>\n
    taxing statutes are normally prospectives unless it is expressly stated to<\/p>\n
    be retrospective. In C.I.T., Bombay ..vs.. M\/s Gwalior Rayon Silk<\/p>\n
    Manufacturing Co. Ltd. (1992) 3 Supreme Court Cases 326, the<\/p>\n
    Supreme Court has observed as under:-\n<\/p>\n
              “All statutes including a taxing statute, should always be<\/p>\n
              read as prospective unless it is expressly stated to be<\/p>\n
              retrospective.”\n<\/p><\/blockquote>\n
    20.            The taxes cannot be imposed\/levied on presumptions<\/p>\n
    and assumptions. In Canadian Eagle Oil Company vs. Per Viscount<\/p>\n
    Simon LC; 1945 Vol. II All England Law Reports 499 it is quoted as<\/p>\n
    under:-\n<\/p>\n
                                                       ::: Downloaded on – 09\/06\/2013 13:39:49 :::<\/span>
\n                                        22<\/span><\/p>\n
             “In a taxing Act, one has to look as to what is clearly<\/p>\n
             said. There is no room for any intendment. There is no
\n             equity about a tax. There is no presumption as to tax.\n<\/p><\/blockquote>\n
             Nothing is to be read in, nothing is to be implied. One
\n             can only look fairly at the language used.”\n<\/p><\/blockquote>\n
                  No taxes can be collected by the respondents without<\/p>\n
    authority of law.<\/p><\/blockquote>\n
                  A taxing statute must be construed strictly; [Sneh<\/p>\n
    Enterprises ..vs.. Commissioner of Customs [2006] 7 SCC 714];\n<\/p>\n
    [Manish Maheshwari ..vs.. Asst. Commissioner of Income-Tax and<\/p>\n
    another; [2007] 289 ITR 341 (sc). In the present case, as section is<\/p>\n
    clear, there is no case of any interpretation or construction. As the law<\/p>\n
    is clear and explicit, the demand of respondents is without authority of<\/p>\n
    law as the provisions of amended Act nowhere permit the respondents<\/p>\n
    to collect such tax\/duty from the petitioner on the amount of expenses<\/p>\n
    incurred by them as done in the present case.\n<\/p>\n
                  In totality, we are inclined to quash and set aside the<\/p>\n
    impugned order\/notice dated 14.09.1993.\n<\/p>\n
                                                       ::: Downloaded on – 09\/06\/2013 13:39:49 :::<\/span>
\n                                       23<\/span><\/p>\n
    21.          In the result, Writ Petition No. 2868 of 1993 is allowed.\n<\/p>\n
    The impugned order dated 14.09.1993 issued by respondent no. 3 is<\/p>\n
    quashed and set aside. No order as to costs.\n<\/p>\n
    22.          In Writ Petition No. 2729 of 1993, The petitioner is a<\/p>\n
    Government of India undertaking and earlier it was known as National<\/p>\n
    Thermal Power Corporation of India Ltd. The petitioner is having a<\/p>\n
    400 K.V. Sub-Station at Bhadravati in Chandrapur District and a<\/p>\n
    residential colony for its employees in the same complex.             It had<\/p>\n
    installed a Cable T.V. Net work and provided connections to its<\/p>\n
    employees without any charge. No outsider is permitted to use the<\/p>\n
    said system. Respondent No. 2 demanded information regarding the<\/p>\n
    Cable Network System.     Reply given by the petitioner.          An order<\/p>\n
    passed by respondent No. 2 directing the petitioner to pay amount<\/p>\n
    towards entertainments duty and surcharge.\n<\/p>\n
                                                    ::: Downloaded on – 09\/06\/2013 13:39:49 :::<\/span>
\n                                         24<\/span><\/p>\n
    23.           In this case also, the impugned demand notice dated<\/p>\n
    14.09.1993 was issued, demanding 25% tax on the total expenses<\/p>\n
    incurred by the petitioner. The petitioner has specifically averred and<\/p>\n
    pointed out that before passing of the impugned order this facility is<\/p>\n
    provided to its employees as welfare measure at no costs and no<\/p>\n
    charge whatsoever recovered and received by the petitioner at any<\/p>\n
    point of time.\n<\/p>\n
                       Therefore, the entertainments duty at 25% and<\/p>\n
    surcharge at 10% on total costs incurred by the petitioner\/Corporation<\/p>\n
    for installation of cable television network is impermissible and<\/p>\n
    beyond the newly added Section 3 (4) of the amended Act as<\/p>\n
    discussed above. There was no question of even filing the returns as<\/p>\n
    admissible under Section 4(b) of the Act for assessment of the<\/p>\n
    entertainments    duty.   Therefore,     the    impugned       order       dated<\/p>\n
    14.09.1993, under section 3(4) and 3 (aa) of the amended Act is<\/p>\n
    contrary to the law and, therefore, liable to be quashed and set aside<\/p>\n
    and it is liable to be quashed and set aside.\n<\/p>\n
                                                       ::: Downloaded on – 09\/06\/2013 13:39:49 :::<\/span>
\n                                      25<\/span><\/p>\n
    24.           In the result, Writ Petition No. 2729 of 1993 is also<\/p>\n
    allowed. Order dated 14.09.1993 passed in C. R. No. 273\/ENT\/1993-\n<\/p>\n
    94 of Bhadravati of respondent No. 2 is quashed and set aside. No<\/p>\n
    order as to costs.\n<\/p>\n
                         JUDGE                   JUDGE\n\n\n\n\n                                         \n    kahale                  \n                           \n            \n         \n\n\n\n\n\n\n                                                  ::: Downloaded on - 09\/06\/2013 13:39:49 :::<\/span>\n <\/pre>\n","protected":false},"excerpt":{"rendered":"
Bombay High Court Ballarpur Paper Industries vs State Of on 6 August, 2008 Bench: Anoop V.Mohta, C. L. Pangarkar 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR WRIT PETITION NO. 2868 OF 1993 Ballarpur Paper Industries, a Company registered under the Indian Companies Act, 1913 and deemed to be registered […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[11,8],"tags":[],"class_list":["post-164417","post","type-post","status-publish","format-standard","hentry","category-bombay-high-court","category-high-court"],"yoast_head":"\nBallarpur Paper Industries vs State Of on 6 August, 2008 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/ballarpur-paper-industries-vs-state-of-on-6-august-2008\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Ballarpur Paper Industries vs State Of on 6 August, 2008 - 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