{"id":4332,"date":"1978-09-15T00:00:00","date_gmt":"1978-09-14T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/markand-saroop-aggarwal-and-ors-vs-m-m-bajaj-and-anr-on-15-september-1978"},"modified":"2015-03-20T12:45:15","modified_gmt":"2015-03-20T07:15:15","slug":"markand-saroop-aggarwal-and-ors-vs-m-m-bajaj-and-anr-on-15-september-1978","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/markand-saroop-aggarwal-and-ors-vs-m-m-bajaj-and-anr-on-15-september-1978","title":{"rendered":"Markand Saroop Aggarwal And Ors vs M. M. Bajaj And Anr on 15 September, 1978"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Markand Saroop Aggarwal And Ors vs M. M. Bajaj And Anr on 15 September, 1978<\/div>\n
Equivalent citations: 1979 AIR 110, \t\t 1979 SCR (1) 784<\/div>\n
Author: P Kailasam<\/div>\n
Bench: Kailasam, P.S.<\/div>\n
           PETITIONER:\nMARKAND SAROOP AGGARWAL AND ORS.\n\n\tVs.\n\nRESPONDENT:\nM. M. BAJAJ AND ANR.\n\nDATE OF JUDGMENT15\/09\/1978\n\nBENCH:\nKAILASAM, P.S.\nBENCH:\nKAILASAM, P.S.\nSINGH, JASWANT\n\nCITATION:\n 1979 AIR  110\t\t  1979 SCR  (1) 784\n 1979 SCC  (1) 116\n\n\nACT:\n     Admission charges\t'on per\t head' basis  to the nightly\ndinner-cum-cabaret    programmes,    whether\tliable\t  to\nentertainment tax-United Provinces Entertainment and Betting\nTax, 1937  (as extended to Delhi) Sections 2(1)(c), 3(1)(3),\n4(1) and 5(3).\n\n\n\nHEADNOTE:\n     The appellants  are five  partners of  Lido Restaurant,\nNew Delhi  and they  charged 'on  per  head'  basis  in\t the\nnightly dinner-cum-cabaret programmes. A complaint was filed\nby the\tEntertainment Tax  Inspector on behalf of the State,\nagainst them  on the  ground that  they had  contravened the\nprovisions of Section 4(1) and with Section 3(1) and Section\n3(3) of\t the U.P. Entertainment and Betting Tax Act, 1937 as\nextended to  Delhi and\tpunishable under Section 5(3) of the\nAct. The  Trial Court  acquitted the  accused on  the ground\nthat no\t offence  against  them\t had  been  established.  On\nappeal, the  High Court\t found them  guilty of\tthe offences\nwith which  they were charged, allowed the appeal, set aside\nthe order  of acquittal\t and imposed a fine of Rs. 40\/- each\non the\tfive partners  of the Lido Restaurant directing that\nthe fines  be paid  in addition\t to the\t tax leviable  under\nSection 3 of the Act.\n     Dismissing the appeal by special leave, the Court\n^\n     HELD  :  1.  The  United  Provinces  Entertainment\t and\nBetting Taxes  Act, 1937  (as extended to Delhi) is wider in\nscope and in application. The definition of 'admission to an\nentertainment' in  S. 2(1)  and 'payment  for admission'  in\nSection 2(6)  and used\tin Section 3(1) are widened so as to\nembrace payment for any purpose whatsoever connected with an\nentertainment  and   admission\tto   place  in\t which\t the\nentertainment is held. [789G-H, 790A]\n     2.\t Admission   to\t an   entertainment  would   include\nadmission to  any place\t in which  entertainment is held and\npayment for  admission would  include any  payment  for\t any\npurpose whatsoever  connected with  an entertainment which a\nperson is  required to\tmake as\t a condition of attending or\ncontinue to  attend the\t entertainment. Cabaret\t show is  an\nitem of entertainment. [787G-H]\n     3. On the facts of the case it would be an admission to\nan entertainment.  Though it may be for taking tea or dinner\nfor a  minimum charge,\tas the admission is to a place where\nthe  entertainment   is\t held,\tit  would  come\t within\t the\ndefinition under  section 2(1).\t Further, the payment of Rs.\n5\/- or Rs. 10\/- though it is stated to be for the dinner, as\nit is  connected with  an entertainment and as the person is\nmaking\tthe   payment  as   a  condition  for  attending  or\ncontinuing to attend the entertainment, it would attract the\ndefinition of  payment for  admission under section 2(6)(iv)\nof the Act. [788G-H, 789A]\n     Williams v.  Wright, [1897]  13 T.L.R. 551, Kitchner v.\nEvening Standard  Co. Ltd., [1936] 1 K.B. 576 and J. Lyons &\nCo. Ltd. v. Fox, [1919] 1 K.B. 11; discussed and quoted with\napproval;\n785\n     Attorney General  v. London  Casing Ltd.,\t[1937] 3 All\nE.R. 858; explained and applied.\n     Attorney General  v. Mcleod, [1918] 1 K.B. 13, Attorney\nGeneral v.  Swan, [1922]  1 K.B.  682, Attorney General Arts\nTheatre of  London Ltd.,  [1933] 1  K.B.  439  and  Attorney\nGeneral v.  South port\tCorporation, [1933]  All  E.R.\t971;\nreferred to.\n\n\n\nJUDGMENT:\n<\/pre>\n
     CRIMINAL APPELLATE\t JURISDICTION :\t Criminal Appeal No.
\n368 of 1976
\n     Appeal by\tSpecial Leave  from the\t Judgment and  Order
\ndated 17-2-1976\t of the\t Delhi High Court in Criminal Appeal
\nNo. 141 of 1971.\n<\/p>\n
     Frank Anthony and N. C. Sikri for the Appellant.
\n     S. N. Anand and R. N. Sachthey for Respondent No. 1
\n     The Judgment of the Court was delivered by
\n     KAILASAM, J.  This appeal\tis  preferred  by  the\tfive
\npartners of Lido Restaurant, Connaught Circus, New Delhi, by
\nspecial leave  against the  Judgment and  order of  the High
\nCourt of Delhi in Criminal Appeal No. 141 of 1971.\n<\/p>\n
     A\tcomplaint   was\t filed\t by  the  Entertainment\t Tax
\nInspector on  behalf of\t the  State  in\t the  court  of\t the
\nJudicial Magistrate,  First Class, against the appellants on
\nthe ground  that they  had  contravened\t the  provisions  of
\nsection 4(1)  read with section 3(1) and section 3(3) of the
\nU.P. Entertainment and Betting Tax Act, 1977, as extended to
\nDelhi and  punishable under  section 5(3)  of the  Act.\t The
\ntrial court  acquitted the  accused on\tthe ground  that  no
\noffence against\t them had been established. On appeal by the
\nEntertainment Tax  Inspector, the  High Court found that the
\nappellants were\t guilty of the offences with which they were
\ncharged,  allowed   the\t appeal,  set  aside  the  order  of
\nacquittal and  imposed a  fine of  Rs. 40\/- each on the five
\npartners of  the Lido Restaurant and directed that the fines
\nbe paid\t in addition  to the tax leviable under section 3 of
\nthe Act.\n<\/p>\n
     P.W. 3,  Bodh Raj,\t was the entertainment tax inspector
\nat the\tmaterial time.\tOn 15th\t November  1968,  under\t the
\ninstruction of\this superior  officer, he  went\t along\twith
\nBajaj,\tP.W.5,\t inspector,  and  visited  Lido\t Restaurant,
\nConnaught Circus,  at 10 P.M. and remained in the Restaurant
\ntill  11.15   P.M.  Cabaret   programme\t was  given  in\t the
\nrestaurant and\ta band\twas in\tattendance. P.W. 3 contacted
\nthe manager  and recorded  a statement\twhich is Ex. B.1, in
\nwhich the manager, V. N. Sood, stated that they were holding
\ncabaret programme  from 5th November 1968 daily and that the
\nservice is  effected on\t an a  la carte\t basis. The  minimum
\ncharges for eatables at the time of
\n786<\/span>
\ncabaret are  Rs. 5\/-  at evening tea, and Rs. 10\/- at dinner
\ntime from 10 P.M. onwards. According to his statement, there
\nwas no\tadmission charge  or fee  of any  kind. P.W.  3 also
\nexamined cash  memos and  found at that time 72 persons were
\npresent in the restaurant for taking dinner. The evidence of
\nthe inspector is that no charges for entry to the restaurant
\nwas collected  except a\t minimum charge\t of Rs.\t 5\/- for the
\nevening and  Rs. 10\/-  for the\tnight which  was  adjustable
\ntowards the  food. The Accountant of the restaurant, who was
\nexamined as  P.W. 4, explained that they were collecting the
\ncharges for  the  food\tconsumed  by  the  customer  in\t the
\nrestaurant and no money was being charged for cabaret or any
\nother type  of entertainment.  The evidence  of P.W.  5, the
\ninspector, Entertainment  Tax, is that a sum of Rs. 10\/ were
\nthe minimum charges for the food including band performance.
\nA sum  of Rs.  10\/- were  charged on  per head basis, in the
\nnightly dinner-cum-cabaret programme.\n<\/p>\n
     On the evidence adduced, the trial court found that the
\ncabaret performance  in a  restaurant is essentially an item
\nof entertainment.  It also  found that\tRs. 5\/- and Rs. 10\/-
\nwere minimum charges for the afternoon tea and dinner. It is
\nalso clear  that these\tamounts were  adjusted\ttowards\t the
\neatables  that\twere  consumed.\t It  is\t not  the  case\t for
\nprosecution that  the price  of eatables were raised for the
\npurpose of  covering the  entertainment, but it is seen from
\nthe admission  of the  manager as  well as  the evidence  on
\nrecord that  whether a\tperson consumed\t anything or not, he
\nhad to\tpay Rs.\t 5\/- for  the evening  and Rs.\t10\/- for the
\nnight. If  he consumes eatables for more than Rs. 5\/- in the
\nevening and  for more than Rs. 10\/- in the night, the amount
\nof Rs.\t5\/- and\t Rs. 10\/-  paid by him would be adjusted. On
\nthese facts,  the question  arose whether  any charges\twere
\ncollected for  the cabaret  entertainment. The\ttrial  court
\ncame to\t the conclusion that nothing was charged for cabaret
\nperformance and\t the minimum  charges had only been fixed so
\nthat no undesirable element can get into the restaurant. The
\nHigh Court came to a different conclusion and found that the
\nidea behind the requirement of payment of minimum charge was
\nto cover  the cabaret  programme and therefore would attract
\nentertainment duty payable under the law.\n<\/p>\n
     In\t order\t to  decide   the  question,   the  relevant
\nprovisions of  the law\tunder which  the accused are charged
\nwill be\t referred to. The United Provinces Act 8 of 1937 was
\npassed on  22nd October\t 1937 for  the purpose of imposing a
\ntax on\tentertainment and  other amusements  and on  certain
\nforms of  betting. Section 3(1) provides that there shall be
\nlevied and  paid to  the Central  Government on all payments
\nfor admission  to any  entertainment,  a  tax  at  the\trate
\nspecified in the section.\n<\/p>\n
787<\/span><\/p>\n
Section\t 3(3)\tprovides  for\tamounts\t payable   on\tlump
\nsubscription or\t contribution or  on season ticket and other
\nmatters which would be referred to a little later.\n<\/p>\n
     Section 4(1) runs as follows:-\n<\/p>\n
\t  “4.(1) Save  as otherwise provided by this Act, no
\n     person, other  than a  person  who\t has  some  duty  to
\n     perform in\t connection with the entertainment or a duty
\n     imposed upon  him by  law, shall  be  admitted  to\t any
\n     entertainment, except  with a  ticket stamped  with  an
\n     impressed embossed,  engraved or  adhesive\t stamp\t(not
\n     before used)  issued by  the Central Government for the
\n     purposes  of  revenue  and\t denoting  that\t the  proper
\n     entertainments tax\t payable under\tsection 3  has\tbeen
\n     paid.”\n<\/p>\n
     The words\t“payment for  admission” in  section 3(1) is
\ndefined under section 2(6) as follows:-\n<\/p>\n
\t  “Payment for admission” includes:-\n<\/p><\/blockquote>\n
\t  (i)  any payment made by a person who, having been
\n\t       admitted\t to   one  part\t  of  a\t  place\t  of
\n\t       entertainment  is  subsequently\tadmitted  to
\n\t       another part  thereof, for admission to which
\n\t       a  payment  involving  tax  or  more  tax  is
\n\t       required;\n<\/p><\/blockquote>\n
\t  (ii) any  payment for seats or other accommodation
\n\t       in a place of entertainment;\n<\/p><\/blockquote>\n
\t   (iii) any  payment for a programme or synopsis of
\n\t       an entertainment; and\n<\/p><\/blockquote>\n
\t  (iv)\tany   payment  for  any\t purpose  whatsoever
\n\t       connected  with\t an  entertainment  which  a
\n\t       person is  required to make as a condition of
\n\t       attending  or   continuing  to\tattend\t the
\n\t       entertainment in\t addition to the payment, if
\n\t       any, for admission to the entertainment.”\n<\/p><\/blockquote>\n
Admission to  an entertainment is defined under section 2(1)
\nas  including\tadmission  to\tany  place   to\t which\t the
\nentertainment is  held. Under section 3(1), all payments for
\nadmission to  any entertainment\t is taxable. Admission to an
\nentertainment would  include admission to any place in which
\nentertainment  is  held\t and  payment  for  admission  would
\ninclude any  payment for  any purpose  whatsoever  connected
\nwith an\t entertainment which a person is required to make as
\na  condition   of  attending   or  continue  to\t attend\t the
\nentertainment. It  is not in dispute that cabaret show is an
\nitem of\t entertainment. The  only  question  therefore\tthat
\narises for  consideration  in  this  case  is,\twhether\t any
\npayment
\n788<\/span>
\nfor admission  to the  entertainment is made. The contention
\non behalf  of the  prosecution is  that by levying a minimum
\ncharge of  Rs. 5\/-  for the  evening and  Rs. 10\/-  for\t the
\nnight, there  is a payment for the entertainment also. It is
\nthe case  of the  defence that\tthere is  no  levy  for\t the
\nentertainment and  the minimum\tfee is\tlevied only  for the
\npurpose of  keeping out\t undesirable elements  from  getting
\ninto the  restaurant. By levying a minimum fee, the customer
\nis liable  to pay the amount whether he consumes any eatable
\nor not.\t Two  advertisements  which  were  inserted  by\t the
\nrestaurant invited  customers for  the show.  In the  issues
\ndated November\t15, 1968 and November 9, 1968, marked as Ex.
\n‘A’ and ‘C’ of the Hindustan Times, it is stated-\n<\/p>\n
     “LIDO
\n     Air-conditioned
\n     RESTAURANT
\n     Opposite
\n     Super Bazar
\n     CABARET
\n     Every day at 7-00 & 10-00 P.M.
\n\t  (Please take seats by 6-30 & 9-30 P.M.)
\n     *Welcome by Ladies
\n     *Music
\n     *Large Selection in Eatables
\n     *Open till late night
\n     Seat Reservation on Tel. 44110”\n<\/p><\/blockquote>\n
The customers  are invited  for the  cabaret to\t take  their
\nseats by  6.30 and  9.30 P.M.  and to listen to music during
\nwhich time  large selection  of eatables would be available.
\nIt is  not alleged  that any  extra rate  is charged for the
\neatable because\t of the\t show but  it is not disputed that a
\nminimum fee  is levied, for taking a seat for witnessing the
\nshow and  for taking  tea or dinner. If the normal rates are
\ncharged for  the items\tconsumed and  incidentally a show is
\nput up,\t it cannot  be said  that any  payment is  made\t for
\nadmission for  the entertainment  but requiring a minimum of
\nRs. 5\/-\t and Rs.  10\/- whether\tthe  customer  consumed\t any
\neatable or not would lead to an irresistible conclusion that
\na payment  of fee for admission to the entertainment is also
\nincluded.\n<\/p>\n
     On the facts of the case it would be an admission to an
\nentertainment. Though it may be for taking tea or dinner for
\na minimum  charge, as  the admission is to a place where the
\nentertainment is  held, it  would come within the definition
\nunder section  2(1). Further,  the payment of Rs. 5\/- or Rs.
\n10\/- though  it is  stated to  be for  the dinner,  as it is
\nconnected with an entertainment and as the person is making
\n789<\/span>
\nthe payment  as a  condition for  attending or continuing to
\nattend the entertainment, it would attract the definition of
\npayment for admission under section 2(6) (iv) of the Act. On
\nthe facts  therefore we agree with the conclusion arrived at
\nby the\tHigh Court and confirm the convictions passed on the
\nappellants  and\t reject\t the  appeal.  The  High  Court,  in
\ndisposing of  the  appeal  by  the  Government,\t though\t the
\nGovernment was\tnot present,  dealt with the law elaborately
\nreferring to  various English decisions. The learned Counsel
\nfor the\t appellants, Mr.  Frank Anthony, referred to some of
\nthe decisions  and we would, before concluding our judgment,
\nrefer to a few of them in brief.\n<\/p>\n
     It may be noted that English Law on the subject has its
\norigin from  the Sunday\t Observance Acts,  1625 to 1780. The
\nAct, as a general rule, prohibited all public entertainments
\nof all\ttypes on Sundays. Act 1780 provided that “any house,
\nroom or other place which shall be opened or used for public
\nentertainment or  amusement and\t to which  persons shall  be
\nadmitted by  the payment  of money  or by  tickets sold\t for
\nmoney shall  be deemed\ta disorderly  house.”, vide Halsbury
\nLaws of England. In Williams v. Wright a ticket for a Sunday
\nconcert at  the Queen’s\t Hall was  stamped “Admission  Free.
\nReserved Seat  1s.” On\tthe facts  it was held that a charge
\nwas made  for a\t reserved seat and was not incompatible with
\nthe admission being free and hence no offence was committed.
\nIn a subsequent case, Kitchner v. Evening Standard Co. Ltd.,
\nin  connection\t with  an   all-in  wrestling\tcontest\t  an
\nadvertisement stated-“Prices  4s. 6d.,\t3s.  6d.,  2s.\t0d.,
\nreserved, unreserved  1s. 0d.”,\t it was held that an offence
\nwas committed as the advertisement made it plain that no one
\ncan get\t in without  payment. The  Finance (New Duties) Act,
\n1916, section  1(1) of\tthe Finance  (New Duties) Act, 1916,
\nreads as follows:-\n<\/p>\n
\t  “There shall,\t as from  the fifteenth\t day of May,
\n     nineteen hundred  and sixteen,  be charged,  levied and
\n     paid on all payments for admission to any entertainment
\n     as defined\t by this  Act an  Excise duty  (in this, Act
\n     referred to as ‘entertainments duty’)…”\n<\/p><\/blockquote>\n
This sub-section  is similar  to section  3(1) of the United
\nProvinces (Entertainment  and Betting  Tax) Act,  1937, with
\nwhich  we   are\t concerned.  The  Acts\twith  which  we\t are
\nconcerned,  have   taken   into\t  account   the\t  subsequent
\ndevelopments and  widened the definition of ‘admission to an
\nentertainment’ and  ‘payment for  admission so as to embrace
\npayment for any purpose whatsoever connected with an
\n790<\/span>
\nentertainment  and   admission\tto  a  place  in  which\t the
\nentertainment is  held. In  Halsbury’s Laws  of England, 3rd
\nEdn. Vol.  37, page  11, para 19, it is stated that it would
\nbe a  levy for entertainment where refreshments are sold for
\na higher price than the normal price even though no money is
\npaid for  admission and\t would be liable for tax. A decision
\nwhich was debated at length at the bar is that of a Court of
\nAppeal in  J. Lyons  & Co.  Ltd. v.  Fox. In  that case, the
\nconcerts of music were given during and after the service of
\ntea and\t dinner. The  dinner was  permitted to\tstay for one
\nhour after  the service\t of dinner had ceased. No charge was
\nmade in any form except for the meals which were served both
\nat a  fixed price  and a-la-carte,  and for which a bill was
\nrendered to the customer before he left the restaurant. By a
\nmajority it  was held that payments made by the customers to
\nthe  restaurant\t  were\tnot   payment\tfor   admission\t  to
\nentertainment within  the meaning  of section  1(1)  of\t the
\nFinance (New  Duties) Act,  1916, and that the entertainment
\nduty was  therefore not\t chargeable in\trespect\t thereof.  A
\nminority judgment  took the  view that the tea or dinner was
\npurely incidental  to the concert, especially in view of the
\nfinding of  the Magistrate  that the persons were paying not
\nmerely for  the dinner\tbut also for the entertainment which
\nfollowed the  dinner. Reference was made to Attorney General
\nv. London  Casino Ltd.,\t under the Finance (New Duties) Act,
\n1916. In  this case, food and drinks were supplied, as in an
\nordinary restaurant,  and patrons  were able to dance on the
\nstage. In  addition, an elaborate revue was performed at the
\nstage. Patrons\twere  allotted\ttables\tas  in\tan  ordinary
\nrestaurant and there was a fixed menu each night, but dishes
\ncould be  ordered a-la-carte.  A minimum  charge of 15s. 6d.
\nwas made,  payment being  made\tbefore\tleaving.  The  Court
\ndistinguishing the  case in  J. Lyons  &  Co.  Ltd.  v.\t Fox
\n(supra) held  that no doubt could be entertained that people
\npaid 15s.  6d. because\tthey  can  have\t a  good  dinner  in
\npleasant surroundings  and  that  they\tpaid  it  and  to  a
\nsubstantial extent paid it because they will, in addition to
\nthe dinner, be able to see an extremely good and interesting
\nand lively  entertainment. The\tCourt holding, “whatever the
\nresult may  be, I  cannot bring\t myself to  doubt  that\t the
\nnormal person  paying 15s.  6d. pays not only for the dinner
\nbut also  for the  right to  dance  to\ta  band,  and  to  a
\nsubstantial extent  also pays  it because  he desires to see
\nthat is a good and elaborate and expensively produced show.”
\nThe facts of the case in the London Casino’s case (supra) is
\nsimilar to  the facts  of our case. In the case before us, a
\nminimum is  fixed and we have no doubt, a part of which is a
\npayment for admis-\n<\/p>\n
791<\/span><\/p>\n
sion to\t the entertainment. Other decisions referred to were
\nAttorney  General  v.  Mcleod,\tAttorney  General  v.  Swam,
\nAttorney General  Arts Theatre\tof London  Ltd. and Attorney
\nGeneral v.  Southport Corporation. We feel it is unnecessary
\nto burden  our judgment\t with the various decisions referred
\nto in  detail by  the High Court for they are not applicable
\nas the\tAct with  which we are dealing is wider in its scope
\nand  application.   In\tthe  circumstances  we\tconfirm\t the
\nconviction and\tsentence imposed  by the  High Court and its
\ndirection regarding levy of the tax and dismiss the appeal.\n<\/p>\n
S.R.\t\t\t\t\t   Appeal dismissed.\n792<\/span>\n\n\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Markand Saroop Aggarwal And Ors vs M. M. Bajaj And Anr on 15 September, 1978 Equivalent citations: 1979 AIR 110, 1979 SCR (1) 784 Author: P Kailasam Bench: Kailasam, P.S. PETITIONER: MARKAND SAROOP AGGARWAL AND ORS. Vs. RESPONDENT: M. M. BAJAJ AND ANR. DATE OF JUDGMENT15\/09\/1978 BENCH: KAILASAM, P.S. BENCH: KAILASAM, […]<\/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":[30],"tags":[],"class_list":["post-4332","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nMarkand Saroop Aggarwal And Ors vs M. M. 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