{"id":92705,"date":"2007-11-12T00:00:00","date_gmt":"2007-11-11T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/ms-jaswant-talkies-vs-commercial-taxes-officer-on-12-november-2007"},"modified":"2015-04-14T19:19:23","modified_gmt":"2015-04-14T13:49:23","slug":"ms-jaswant-talkies-vs-commercial-taxes-officer-on-12-november-2007","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/ms-jaswant-talkies-vs-commercial-taxes-officer-on-12-november-2007","title":{"rendered":"M\/S Jaswant Talkies vs Commercial Taxes Officer, … on 12 November, 2007"},"content":{"rendered":"
Supreme Court of India<\/div>\n
M\/S Jaswant Talkies vs Commercial Taxes Officer, … on 12 November, 2007<\/div>\n
Author: . A Pasayat<\/div>\n
Bench: Dr. Arijit Pasayat, D.K. Jain<\/div>\n
           CASE NO.:\nAppeal (civil)  5161 of 2007\n\nPETITIONER:\nM\/s Jaswant Talkies\n\nRESPONDENT:\nCommercial Taxes Officer, Bhilwara\n\nDATE OF JUDGMENT: 12\/11\/2007\n\nBENCH:\nDr. ARIJIT PASAYAT & D.K. JAIN\n\nJUDGMENT:\n<\/pre>\n
J U D G M E N T<\/p>\n
CIVIL APPEAL NO.\t5161\t  OF 2007
\n(Arising out of SLP (C) No. 7053 of 2006)<\/p>\n
Dr. ARIJIT PASAYAT, J.\n<\/p>\n
1.\tLeave granted.\n<\/p>\n
2.\tChallenge in this appeal is to the order passed by a
\nlearned Single Judge of the Rajasthan High Court at Jodhpur,
\nallowing the revision filed by the respondent. The said revision
\npetition was filed under Section 86 of the Rajasthan Sales Tax
\nAct, 1994 (in short the ‘Act’).\n<\/p>\n
3.\tFactual position which is almost undisputed is as
\nfollows:\n<\/p>\n
The appellant is an exhibitor of cinematograph films. On
\n3.2.1996 cinema hall of the appellant was inspected by the
\nCommercial Tax Inspectors. At that time a movie “Alladdin”
\nwas being shown in the morning show. At the time of
\ninspection, 878 viewers were found watching the movie
\nwithout tickets. It was found that the daily collection register
\nmaintained by the appellant was not properly maintained. The
\ninspectors put their signatures after drawing a line in the
\nregister so that no entry can be made thereafter. Alleging that
\nthe appellant admitted 878 viewers without tickets, a show
\ncause notice was issued under Section 10 of the Rajasthan
\nEntertainment and Advertisement Tax Act, 1957 (in short the
\n‘Entertainment Act’) prima facie being of the view that offence
\nunder Sections 6(1) and 6(2) of the Entertainment Act has
\nbeen committed. The appellant submitted its reply and stated
\nthat girl students of a school had gone to watch the movie
\nwhich was meant for children and in any event there was no
\nscope for imposition of penalty of Rs.500\/- in respect of each
\nviewer. The Commercial Tax Officer, Bhilwara was of the view
\nthat penalty at the rate of Rs.500\/- per viewer was to be
\nimposed and in addition penalty of Rs.500\/- under Section
\n10(3)(b) was also to be imposed.  The officer was of the view
\nthat mere fact that children of Mahila Aashram were being
\nshown the picture and the tickets were to be handed over to
\nthe school authorities after counting the number of children
\nwas not relevant.\n<\/p>\n
The inspection was done at 10.00 a.m. when the school
\nchildren had just entered the hall and, therefore, even before
\nthe show started the inspection was done. The order of
\nassessment was challenged before the Commissioner
\n(Appeals). The said authority found that all the tickets were
\nwith the Manager of the Cinema, but since each viewer did not
\npossess a ticket there was contravention.  Therefore, penalty
\nunder Section 10(3)(a) of the Entertainment Act was upheld
\nwhile setting aside the penalty imposed under Section
\n10(3)(b)(iii).\n<\/p>\n
The appellant preferred an appeal against the said order
\nbefore the Rajasthan Taxation Board, Ajmer (in short the
\n‘Taxation Board’). Before the Taxation Board, it was
\ncontended that the total cost of the tickets was Rs.3006\/- and
\npenalty of Rs.4,39,000\/- at the rate of Rs.500\/- per viewer
\nwas unconscionable. The Taxation Board found that the
\npenalty that was imposed was not imposable at the rate of
\nRs.500\/- per viewer and the maximum penalty imposable was
\nRs.500\/-.\n<\/p>\n
Revenue filed a revision petition as noted above and by
\nthe impugned order penalty imposed by the Assessing Officer
\nwas restored.\n<\/p>\n
4.\tIn support of the appeal, learned counsel for the
\nappellant submitted that the High Court has relied on a
\ndecision of its own Court in Maharana Talkies, Bhilwara v.
\nState of Rajasthan and Ors. (2004 (1) STT 237 (Raj.HC))
\nignoring the view expressed in State of Rajasthan and Ors. V.
\nRTT and Ors. (2003 WLC (Raj.) which held that no penalty can
\nbe levied per person. The High Court also, it is pointed out,
\nheld in that case that the subsequent amendment was not
\nclarificatory.\n<\/p>\n
5.\tLearned counsel for the State on the other hand
\nsupported the order.\n<\/p>\n
6.\tThe legislative history of the statutory provision needs to
\nbe noted.\n<\/p>\n
Section 10 of the Rajasthan Entertainment and
\nAdvertisement Act, 1957 existing pre-1982 <\/p>\n
10. Offence and penalties. – (1)
\nNotwithstanding anything contained in any law
\nfor the time being in force, a ticket for
\nadmission to an entertainment shall not be
\nresold for profit by the holder thereof.
\n(2) Whoever re-sells any ticket for admission in
\ncontravention to the provisions of sub-section
\n(1) shall, on conviction before a Magistrate, be
\nliable to pay fine which may extend to two
\nhundred rupees.\n<\/p>\n
(3)(a) The proprietor of any entertainment or any
\nperson employed by him in any place of
\nentertainment, who admits any person to any
\nplace of entertainment in contravention of the
\nprovisions of sub-section (1) or sub-section (2)
\nof Section 6, or\n<\/p>\n
(b)\tThe proprietor of an entertainment who <\/p>\n
(i)\tfails to pay the tax due from him
\nunder this Act within the prescribed
\ntime, or<\/p>\n
(ii)\tfraudulently evades the payment of
\ntax due from him under this Act, <\/p>\n
(iii)\tcontravenes any of the provisions of
\nthis Act or the rules framed
\nthereunder for which no other
\npenalty has been provided under this
\nAct.\n<\/p>\n
shall be liable to pay by way of penalty, in
\naddition to the amount of tax payable by him a
\nsum not exceeding Rs.500\/-.\n<\/p>\n
Section 10 of the Rajasthan Entertainment and
\nAdvertisement Act, 1957 from 1982<\/p>\n
10. Offence and penalties. – (1)
\nNotwithstanding anything contained in any law
\nfor the time being in force, a ticket for
\nadmission to an entertainment shall not be
\nresold for profit by the holder thereof.
\n(2) Whoever re-sells any ticket for admission in
\ncontravention to the provisions of sub-section
\n(1) shall, on conviction before a Magistrate, be
\nliable to pay fine which may extend to two
\nhundred rupees.\n<\/p>\n
(3)(a) The proprietor of an entertainment or any
\nperson employed by him in any place of
\nentertainment, who admits any person to any
\nplace of entertainment in contravention of the
\nprovisions of sub-section (1) or sub-section (2)
\nof Section 6, or\n<\/p>\n
(b)\tThe proprietor of an entertainment who <\/p>\n
(i) fails to pay the tax due from him under
\nthis Act within the prescribed time, or\n<\/p>\n
(ii) fraudulently evades the payment of tax
\ndue from him under this Act, or<\/p>\n
(iii) contravenes any of the provisions of
\nthis Act or the rules framed thereunder for
\nwhich no other penalty has been provided
\nunder this Act.\n<\/p>\n
shall be liable to pay by way of penalty <\/p>\n
(i)\tin respect of cases referred  to in clause\n<\/p>\n
(a) and sub-clauses (i) and (iii) of clause (b) in
\naddition  to the amount of tax payable  by him,
\na sum not exceeding Rs.500\/- and <\/p>\n
(ii)\tin respect of cases referred to in sub-
\nclause (ii) of clause (b) in addition to the
\namount of tax payable by him a sum not
\nexceeding rupees five hundred or double the
\namount of tax evaded whichever is higher.\n<\/p>\n
(4)\tThe prescribed authority not below the rank of
\nan Assistant Commercial Taxes Officer may, after
\naffording a reasonable opportunity of being heard to
\nthe person affected, impose  the penalty mentioned
\nin sub-section (3).\n<\/p>\n
(5)\tThe person affected may, within one month of
\nthe communication of the order directing payment
\nof any sum by way of penalty under sub-section (3)
\nappeal to the prescribed authority.\n<\/p>\n
Amended Section 10 of the Rajasthan Entertainment and
\nAdvertisement Act, 1957 with effect from 31.7.1998<\/p>\n
10.\tOffence and penalties (1) Notwithstanding
\nanything contained in any law for the time being in
\nforce a ticket for admission to an entertainment
\nshall not be resold for profit by the holder thereof.
\n (2) Whoever re-sells any ticket for admission in
\ncontravention to the provisions of sub-section (1)
\nshall, on conviction before a Magistrate, be liable to
\npay fine which may extend to two hundred rupees.
\n(3)(a) The proprietor of an entertainment or any
\nperson employed by him in any place of
\nentertainment, who admits any person to any place
\nof entertainment in contravention of the provisions
\nof sub-section (1) or subsection (2) of Section 6, or\n<\/p>\n
(b)\tthe proprietor of an entertainment who <\/p>\n
(i) fails to pay the tax due from him under this
\nAct within the prescribed time, or\n<\/p>\n
(ii) fraudulently evades the payment of tax due
\nfrom him under this Act, or<\/p>\n
(iii) contravenes any of the provisions of this
\nAct or the rules framed thereunder for which
\nno other penalty has been provided under this
\nAct shall be liable to pay by way of penalty-\n<\/p>\n
(i) in respect of cases referred to in clause\n<\/p>\n
(a) and  sub-clause (1) of clause (b)
\nregarding  entertainment tax, in addition
\nto the amount of tax payable by him, a
\nsum not exceeding Rs.100\/- per person;\n<\/p>\n
(ii) in respect of cases referred to in sub-
\nclause (1) of clause (b) regarding
\nadvertisement tax and in respect of cases
\nreferred to in sub-clause (iii) of clause (b)
\nin addition to the amount of tax payable
\nby him, a sum not exceeding Rs.500; and\n<\/p>\n
(iii)in respect of cases referred to in sub-
\nclause (ii) of clause (b) in addition to the
\namount of tax payable by him a sum not
\nexceeding Rupees five hundred or double
\nthe amount of tax evaded whichever is
\nhigher.\n<\/p>\n
(4) The prescribed authority not below the rank of
\nan Assistant Commercial Taxes Officer may, after
\naffording a reasonable opportunity of being heard
\nto the person affected, impose the penalty
\nmentioned in sub-section (3).\n<\/p>\n
7.\tIt is to be noted that Section 10 of the Entertainment Act
\nhas been amended w.e.f. 31st July, 1998. The amended
\nprovision permits imposition of penalty per person. Section
\n10(3)(b) contemplates two types of penalties. The first relates
\nto cases covered by clause (a) and sub-clauses (i) and (ii) of
\nClause (b). The second relates to sub-clause (ii) of Clause (b) of
\nSub-Section 3 of Section 10. The case at hand relates to
\nclause (a) of sub-section (3) of Section 10.  If the position was
\nclear as contended by learned counsel for the State that the
\npenalty is to be at the rate of Rs.500\/- per person, there was
\nno reason for the amendment which specifically provided for
\nimposition of penalty per person.\n<\/p>\n
8.\tThe Statement of Objects and Reasons for the
\namendment also throw considerable light on this position. The
\nsame reads as follows:\n<\/p>\n
B. Amendment in the Rajasthan Entertainment
\nand Advertisements Tax Act, 1957
\nCertain amendments in the Rajasthan
\nEntertainment and Advertisements Tax Act, 1957
\nhave been considered necessary and were under
\nconsideration for quite some time past.
\nOwing to repeal of the Rajasthan Sales Tax
\nAct, 1954 and coming into force of new Act of
\n1994, definition of the term `Sales Tax Act’, and
\ndue to proposed induction of certain new
\nprovisions in the `Act of 1957′, definitions of the
\nterms `appellate authority’, Tax Board’ and
\nTribunal’ are proposed to be inserted vide clause 9
\nof the Bill.\n<\/p>\n
To provide for limitation for assessments, new
\nsection 5BB, to ensure effective recovery of the
\nout-standing entertainment tax by providing
\nspecial mode of recovery, substitution of section 9,
\nto enable payment of outstanding dues in
\ninstallments, new section 5BB, to enable the
\nCommissioner to reduce or waive interest and
\npenalty under the Act in case of genuine hardship,
\nnew section 9C are proposed to be inserted,
\nsubstituted or inserted, as the case may be, vide
\nclauses 12, 13 or 14 of the Bill respectively.
\n \tMoreover to make the penalty provision more
\npracticable, section 10 (3) (b) is proposed to be
\nsubstituted vide clause 15 of the Bill.
\nBesides above, to provide for statutory
\nremedy of first appeal, new section 13-A, to provide
\nfor appeal against order of appellate authority, new
\nsection 13-B, to provide for revision to tribunal, new
\nsection 13-C provide for powers of revision to
\nCommissioner in case of an order passed by the
\nprescribed authority being erroneous or prejudicial
\nto the interest of State revenue, new section 13D,
\nand to provide for rectification of mistakes apparent
\nfrom the record, new section 13-E; are proposed to
\nbe inserted vide clause 19 of the Bill.\n<\/p>\n
Some of the consequential or minor
\namendments are also proposed in various sections
\nof the Act of 1957 vide clauses 10, 11, 17, 20 and
\n21 of the Bill.\n<\/p>\n
Extract of the Rajasthan Finance Bill, 1998 Relevant
\nportion:\n<\/p>\n
15. Amendment of Section lO, Rajasthan Act
\nNo. 24 of 1956:\n<\/p>\n
In section 10 of the principal Act, –\n<\/p>\n
(a)\tfor existing clause (b) of sub-section (3),
\nthe following clause shall be substituted,
\nnamely:\n<\/p>\n
\t“(b) the proprietor of any entertainment
\nwho –\n<\/p>\n
(i) fails to pay the tax due from him under
\nthis Act within the prescribed time, or\n<\/p>\n
(ii) fraudulently evades the payment of tax
\ndue from him under this Act, or\n<\/p>\n
(iii) contravenes any of the provisions of
\nthis Act or the rules framed thereunder, for
\nwhich no other penalty has been provided
\nunder this Act, shall be liable to pay by
\nway of penalty:\n<\/p>\n
(i)\tin respect of cases referred to in
\nclause (a) and sub-clause (i) of clause (b)
\nregarding entertainment tax, in addition to
\nthe amount of tax payable by him, a sum
\nnot exceeding Rs.100\/- per person.\n<\/p>\n
(ii) in respect of cases referred to in sub –
\nclause (i) of clause (b) regarding
\nadvertisement tax and in respect of cases
\nreferred to in sub-clause (iii) of cause (b),
\nin addition to the amount of tax payable by
\nhim, a sum not exceeding Rs.500; and\n<\/p>\n
(iii) in respect of cases referred to in sub
\nclause (ii) of clause (b) in addition to the
\namount of tax payable by him a sum not
\nexceeding Rupees five hundred or double
\nthe amount of tax evaded whichever is
\nhigher.”\n<\/p>\n
(b)\tsub-section (5) shall be deleted.\n<\/p>\n
9.\tIt is also irrational that as against a tax liability of
\nRs.3006\/-, penalty of Rs.4,39,000\/- was to be imposed.
\nThough in all cases quantum would not be a relevant factor,
\nbut on analyzing the scheme of the Statute it is clear that the
\nstress is on the contravention. The contravention essentially is
\nof admitting persons without valid ticket and at the relevant
\npoint of time, had no nexus with the number of persons. To
\nmake the provision stringent the shift has been made to per
\nperson. But the amendment has no retrospective effect and as
\nnoted above is not clarificatory.\n<\/p>\n
10.\tAs noted above, the amendment does not appear to be
\nclarificatory in nature as contended by learned counsel for the
\nrespondent-State. The view of the High Court therefore is not
\ncorrect. The conclusion of the Taxation Board was the correct
\nview.\n<\/p>\n
11.\tThe appeal deserves to be allowed which we direct. There
\nshall be no order as to costs.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India M\/S Jaswant Talkies vs Commercial Taxes Officer, … on 12 November, 2007 Author: . A Pasayat Bench: Dr. Arijit Pasayat, D.K. Jain CASE NO.: Appeal (civil) 5161 of 2007 PETITIONER: M\/s Jaswant Talkies RESPONDENT: Commercial Taxes Officer, Bhilwara DATE OF JUDGMENT: 12\/11\/2007 BENCH: Dr. ARIJIT PASAYAT & D.K. JAIN JUDGMENT: J […]<\/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-92705","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nM\/S Jaswant Talkies vs Commercial Taxes Officer, ... on 12 November, 2007 - 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\/ms-jaswant-talkies-vs-commercial-taxes-officer-on-12-november-2007\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"M\/S Jaswant Talkies vs Commercial Taxes Officer, ... on 12 November, 2007 - 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