THE STATE OF MAHARASHTRA & ORS.versusPAN INDIA PARYATAN LIMITED & ANR.

652                       [2020]
               SUPREME COURT     1 S.C.R. 652
                              REPORTS                      [2020] 1 S.C.R.


A                 THE STATE OF MAHARASHTRA & ORS.
                                        v.
                 PAN INDIA PARYATAN LIMITED & ANR.
                     (Civil Appeal Nos. 6438-6439 of 2009)
B                            FEBRUARY 18, 2020
              [DEEPAK GUPTA AND HEMANT GUPTA, JJ.]
             Bombay Entertainments Duty Act, 1923: ss. 3(1)(b), 3(2),
      3(5)(a) and (b) – Duty on payments for admission to entertainment
      – Levy of entertainment duty for entry in amusement park –
C
      Respondent was running an amusement park and was required to
      pay entertainment duty – Respondent sought confirmation that
      entertainment tax to be levied @ 3.75% of the value of a consolidated
      ticket, however, demand of entertainment duty @7.5% and not
      @3.75% from the respondent – Respondent paid in protest – Writ
D     petition challenging the provisions of the Act and seeking refund of
      the duty paid – High Court held that entertainment duty to be levied
      for the amusement park is 50% of 15% i.e. 7.5% u/s. 3(2), thus, in
      terms of s. 3(5)(a) and (b), the entertainment duty is 50% of 7.5%
      i.e. 3.75% – On appeal, held: In respect of the first three years from
      the date of commencement of the amusement park, no entertainment
E
      duty is payable – However, in respect of the subsequent two years,
      the rate of duty leviable is u/s.3(1)(b) or, as the case may be, u/s.
      3(2) – All amusement parks for all entertainment are not entitled to
      concessional duty in terms of s. 3(2) of the Act, thus, respondents
      cannot claim benefit u/s.3(2) – Amusement parks would be entitled
F     to only one benefit either u/s. 3(2) or u/s. 3(5)(a) – Since s.3(2) is
      not applicable to all amusement parks for all other activities,
      therefore, the entertainment duty in terms of s.3(5)(a) alone would
      be leviable – Order of the High Court that in terms of s. 3(5)(a), the
      entertainment duty is 50% of the duty payable u/s. 3(2) cannot be
      accepted and is set aside.
G
            Allowing the appeals, the Court
           HELD: 1.1 Sub-clause (ii) of Section 3(5)(a) of the Bombay
      Entertainments Duty Act, 1923 contemplates that duty @50%
      under clause (b) of sub-section (1) or, as the case may be, sub-
H
                                       652
    THE STATE OF MAHARASHTRA & ORS. v. PAN INDIA                         653
              PARYATAN LIMITED & ANR.

section (2) of Section 3 would be payable. In respect of the first       A
part of sub-clause (ii) of Section 3(5)(a) of the Act, the
entertainment duty is 50% of 15% leviable under Section 3(1)(b)
of the Act. It is sub-section 3(2) of the Act which is required to be
interpreted. The said provision is in respect of charging of duty
at 50% of the duty fixed in Section 3(1)(b) of the Act to the specific
                                                                         B
category of visitors to the amusement parks such as payment in
“lump sum as a subscription or contribution to any society”, or
“for a season ticket” or “for the right of admission to a series of
entertainments” or “any entertainment during a certain period
of time”. The writ petitioners do not fall in any of the four
categories. Category (a) is subscription or contribution in lump         C
sum to any society. The writ petitioners would not fall in such
category as the payment is not to any society. It is not the case of
writ petitioners that they have issued a season’s ticket to the
visitors. Category (d), that entry would be on charging 50% of
the duty fixed for any entertainment during a certain period of
                                                                         D
time, depends upon the decision of the State Government and/or
Municipal Corporation to grant that relaxation to enable the writ
petitioners or such other amusement park owners to charge duty
at a lesser rate. [Para 12-15][660-B-H]
      1.2 The amusement park is defined under Section 2(a-1) of
the Act to mean a place wherein various types of amusements              E
including games or rides or both are provided fairly, on a
permanent basis, on payment for admission. The payment for
admission is defined under Section 2(b) of the Act as the payment
made by a person having admitted to one part of a place of
entertainment and subsequently admitted to another part. Section         F
2(d) of the Act deals with admission to an entertainment which
includes admission to any place in which the entertainment is
held. It cannot be said that when a lumpsum amount is paid as a
right of admission for all rides and games, then it becomes
admission to series of entertainment. The writ petitioners issue
one ticket including one or more rides or games situated in one          G
compound. It is not the case of the writ petitioners that for every
ride or game, it is charging separately. The admission to
entertainment in terms of Section 2(d) of the Act includes all rides
and games which are provided by the service provider. The series
                                                                         H
654            SUPREME COURT REPORTS                       [2020] 1 S.C.R.


A     of entertainment as contemplated by Section 3(2) of the Act does
      not mean that on a single day ticket for one entry, it can be treated
      to be a series of entertainments. The series of entertainments
      can be where the facility for a game or ride is provided on multiple
      days and a combined ticket is issued for events for each day. It
      will only then be said to be series of entertainment. [Para 16,
B
      17][661-B-E]
            1.3 Once an admission ticket is granted, it is not in terms
      of Section 3(2) of the Act but only in terms of Section 3(1)(b) of
      the Act. Section 3(2) of the Act has no applicability for a visitor to
      an amusement park who does not fall in any of the four categories
C     mentioned in Section 3(2) of the Act. Since, the activities
      undertaken by the writ petitioners are not failing part of Section
      3(2) of the Act, therefore, they are not entitled to rebate of 50%
      provided to specified category of persons in Section 3(2) of the
      Act. [Para 18][661-F-G]
D            1.4 Section 3(5)(a) of the Act has an overriding effect over
      Section 3(1)(b) and Section 3(2) of the Act. In respect of the first
      three years from the date of commencement of the amusement
      park, there is no issue as no entertainment duty is payable. But,
      in respect of the subsequent two years, the rate of duty leviable
E     is under clause (b) of sub-section (1) or, as the case may be, under
      sub-section (2) of Section 3. Section 3(1)(b) of the Act is applicable
      to all amusement parks whereas Section 3(2) of the Act has a
      limited applicability only in respect of the specified categories
      therein. All amusement parks for all entertainment are not entitled
      to concessional duty in terms of Section 3(2) of the Act. Therefore,
F     the writ petitioners cannot claim benefit under Section 3(2) of
      the Act. The argument is preposterous as the writ petitioners
      are firstly claiming the benefit under Section 3(2) of the Act and
      then under Section 3(5)(a) of the Act. The amusement parks would
      be entitled to only one benefit either under Section 3(2) or under
G     Section 3(5)(a) of the Act. Since Section 3(2) is not applicable to
      all amusement parks for all other activities, therefore, the
      entertainment duty in terms of Section 3(5)(a) of the Act alone
      would be leviable. The duty under Section 3(2) of the Act would
      be leviable only in respect of specified categories mentioned
      therein. [Para 19][661-H; 662-A-C]
H
       THE STATE OF MAHARASHTRA & ORS. v. PAN INDIA                           655
                 PARYATAN LIMITED & ANR.

      1.5 The judgment of the High Court that in terms of Section             A
3(5)(a) of the Act, the entertainment duty is 50% of the duty
payable under Section 3(2) of the Act cannot be accepted and is
set aside. [Para 20][662-D]
      CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 6438-
6439 of 2009.                                                                 B
       From the Judgment and Order dated 19.12.2006 of the High Court
of Judicature at Bombay in Writ Petition No. 111 of 1996 with Writ
Petition No. 2009 of 1998.
     Sachin Patil, Rahul Chitnis, Aaditya A. Pande, Geo Joseph, Nishant
Ramakantrao Katneshwarkar, Advs. for the Appellants.                          C
     Tejveer Bhatia, Sudeep Chatterji, Ms. Surbhi Singh, Gaurav
Sharma, Abhinav Mukerji, Advs. for the Respondents.
          The Judgment of the Court was delivered by
          HEMANT GUPTA, J.                                                    D
      1. The challenge in the present appeals is to an order passed by
the Division Bench of the High Court of Judicature at Bombay on 19th
December, 2006 whereby Sections 3(1)(b), 3(2) and sub-sections 5(a)
and (b) of the Bombay Entertainments Duty Act, 19231 were interpreted
to hold that the rate of tax payable by the respondents 2 would be as
                                                                              E
follows:
          “i. For the first three years from date of commencement of park
          the Petitioners are not required to pay any duty,
          ii. Duty for the 4th and 5th year, from the date of commencement,
          duty payable is at the rate of 3.75%, applying concessional         F
          provision.
          iii. Duty payable during 6th year from the date of commencement
          of park and there onwards, is at rate of 7.5%.”
       2. The writ petitioners own and run an amusement park within
limits of Greater Bombay which was opened to the public for admission         G
on 25th December, 1989. They charged a lumpsum amount for admission
and entertainment to the amusement park. In terms of the Act, the writ
petitioners were required to pay entertainment duty.
1
    for short, ‘Act’
2
    for short, ‘writ petitioners’                                             H
656            SUPREME COURT REPORTS                            [2020] 1 S.C.R.


A            3. In the writ petition before the High Court, the assertion of the
      writ petitioners was that on 4th October, 1994, it sought confirmation that
      entertainment tax to be levied would be 3.75% of the value of a
      consolidated ticket. Such stand was accepted by appellant No. 2-The
      Collector, Bombay Suburban District. Later, vide communication dated
      7th January, 1995, the writ petitioners were informed that they would be
B
      required to pay duty @7.5% and not @3.75%. The writ petitioners
      challenged such demand by way of writ petition. The said writ petition
      was withdrawn with liberty to file a fresh petition.
             4. The State sought to recover the entertainment duty @7.5% in
      respect of entry to the amusement park for the period from 16th September,
C     1994 to 24th December, 1994 and @15% from 25th December, 1994.
      The writ petitioners paid the duty under protest. In a writ petition
      challenging the provisions of the Act, the writ petitioners sought refund
      of the duty paid.
            5. The High Court found that the following questions arose for
D     consideration:
            “i. Rate of entertainment duty payable by the Petitioners for a
            period from 16th September, 1994 to 24th December, 1994.
            ii. Rate of duty payable for the period commencing 25th December,
E           1994.
            iii. Whether action of Respondents in seeking to recover duty
            payable during 25th December, 1989 to 23rd August, 1990 already
            adjusted against refund payable to Petitioners, is justified and valid
            in law. This question is raised by Writ Petition No. 2009 of 1998.”
F            6. Before we consider the respective arguments of the learned
      counsel for the parties, the statutory provisions of the Act need to be
      referred:
            “2 (a-1). “amusement park” means a place wherein various types
            of amusements including games or rides or both but excluding
G           exhibition by cinematograph and video exhibition are provided fairly
            on permanent basis, on payment for admission;
                       xx                        xx                         xx
            2 (b) “payment for admission” in relation to the levy of
            entertainments duty, includes-
H
THE STATE OF MAHARASHTRA & ORS. v. PAN INDIA                           657
 PARYATAN LIMITED & ANR. [HEMANT GUPTA, J.]

 (i) any payment made by a person who, having been admitted to         A
 one part of a place of entertainment, is subsequently admitted to
 another part thereof for admission to which a payment involving
 duty or more duty is required,
           xx                       xx                        xx
 (d) “admission to an entertainment”, includes admission to any        B
 place in which the entertainment is held or any place where from
 the entertainment is provided by means of cable connection from
 any type of antenna with a cable network attached to it or cable
 television for Direct-to-Home (DTH) Broadcasting service;
           xx                       xx                        xx       C

 (f) “entertainment duty”, or “duty” in respect of any entertainment
 means the entertainment duty levied under section 3;
 3. Duty on payments for admission to entertainment. –
 (1) There shall be levied and paid to the State Government on all     D
 payments for admission to any entertainment [except in the case
 of video games, exhibition by means of any type of antenna or
 cable television, or exhibition by means of Direct-to-Home (DTH)
 Broadcasting service, bowling alley, Go-carting, dance bar,
 discotheque, amusement park, water sports activity, pool game] a
                                                                       E
 duty (hereinafter referred to as “entertainments duty”) at the
 following rates, namely:-
 (a)       xx                       xx                        xx
 (b) In the case of every entertainment, [other than exhibition by
 cinematograph including video exhibition [video games and             F
 exhibition by means of any type of antenna or cable television]
 Provided that, in the case of the cabaret entertainment, fifty per
 cent of the total payment charged by the proprietor per person
 per show, whether with or without eatables or beverages and
 whether regular tickets are issued or not, for admission to such      G
 entertainment, shall be deemed to be the payment for admission
 and duty shall be levied thereon accordingly under this clause:
 Provided further that, the entertainment duty in respect of an
 amusement park shall be 15 per cent of the payment made
                                                                       H
658            SUPREME COURT REPORTS                             [2020] 1 S.C.R.


A           for admission to the amusement park, including payment made
            for admission for games and rides, whether charges separately
            or not”
            3(2) Where the payment for admission to an entertainment is
            made by means of a lump sum paid as a subscription or
B           contribution to any society, or for a season ticket or for the
            right of admission to a series of entertainments or to any
            entertainment during a certain period of time, or for any
            privilege, right, facility or thing combined with the right of admission
            to any entertainment or involving such right of admission without
            further payment or at a reduced charge, the entertainment duty
C           shall be levied and paid on 50 per cent; of such lump sum at the
            rates specified in clause (b) of sub-section (1).
            3(5)(a) 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 25 th
D           December, 1989, there shall be levied, and paid by the
            proprietor to the State Government, the entertainments duty
            in respect of an amusement park in the following manner,
            namely:-
            (i) for the first three years from the date of commencement of
E           the amusement park, 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;

F           (iii) from the sixth years, full amount of entertainments duty
            leviable at the rate of specified in clause (b) of sub-section (1) or,
            as the case may be, sub-section (2) of section 3.
            Explanation.- For the purpose of this sub-section,-
            *********       ’’
G                                                           (emphasis supplied)
             7. The High Court held that entertainment duty to be levied for
      the amusement park is 50% of 15% i.e. 7.5% under Section 3(2) of the
      Act, therefore, in terms of Section 3(5)(a) and (b) of the Act, the
      entertainment duty is 50% of 7.5% i.e. 3.75%. The High Court held that
H
    THE STATE OF MAHARASHTRA & ORS. v. PAN INDIA                                659
     PARYATAN LIMITED & ANR. [HEMANT GUPTA, J.]

such interpretation is on the basis of a cumulative reading of the provisions   A
of the Act.
        8. The argument of the learned counsel for the appellants is that
Section 3(5)(a) of the Act starts with a non-obstante clause contemplating
levy of an entertainment duty in respect of the amusement park, in the
manner mentioned therein. Section 3(1) of the Act contemplates levy of          B
entertainment duty in respect of amusement park to be 15% of the
payment made for admission to the same. In terms of the non-obstante
clause with which Section 3(5)(a) begins, the levy of duty shall be in
terms of that sub -section. There is no difficulty in respect of sub-clause
(i) of Section 3(5)(a) of the Act, which is to the effect that no duty shall
be payable. Sub-clause (ii) of Section 3(5)(a) of the Act contemplates          C
that for the subsequent two years, duty @50% would be leviable under
clause (b) of sub-section (1) or, as the case may be, sub-section (2) of
section 3 of the Act.
       9. The learned counsel for the writ petitioners argued that upon a
collective reading of the definition of “amusement park” (which means           D
a place where various types of entertainment are provided on a
permanent basis on payment for admission) and Section 3(2) which
provides that upon payment of admission to entertainment by means of
a lump sum amount for the right to admission to a series of entertainments,
the entertainment duty would be charged @ 50% of the rates mentioned            E
in Section 3(1)(b). Thus, in the case where the amusement park charges
a lump sum amount as a right to admission for all the rides and games
available in the said amusement park, then, Section 3(2) will be applicable
and the entertainment duty payable by the amusement park would be
half of what is provided in Section 3(1)(b) being 15% i.e. 7.5%.
                                                                                F
       10. It is also argued that the proviso to Section 3(1)(b) ends with
the phrase “including payments made for admissions for games and rides,
whether charged separately or not”. Thus, 15% entertainment tax was
payable by the amusement park where it charged an amount for mere
admission and the charges for the games and rides being separate.
However, where the amusement park charges a lump sum amount which               G
includes the charges for games and rides, the entertainment tax payable
would be 7.5 % in terms of Section 3(2).
      11. It is argued that Section 3(5)(a) of the Act further gives a tax
holiday on the duty payable under Section 3(1)(a) or Section 3(2) of the
                                                                                H
660             SUPREME COURT REPORTS                           [2020] 1 S.C.R.


A     Act, therefore, for the fourth and fifth year of the operation of the
      amusement park, the duty would be 3.75%.
             12. We do not find any merit in the argument raised by learned
      counsel for the writ petitioners. In respect of first three years falling in
      Section 3(5)(a) of the Act, there is no dispute, as no duty is payable.
B     The controversy revolves around the levy of entertainment duty for the
      fourth and fifth year and subsequently from the sixth year onwards.
      Sub-clause (ii) of Section 3(5)(a) contemplates that duty @50% under
      clause (b) of sub-section (1) or, as the case may be, sub-section (2) of
      Section 3 would be payable. In respect of the first part of sub-clause (ii)
      of Section 3(5)(a) of the Act, there can possibly be no dispute as the
C     entertainment duty is 50% of 15% leviable under Section 3(1)(b) of the
      Act.
             13. It is sub-section 3(2) of the Act which is required to be
      interpreted. The said provision is in respect of charging of duty at 50%
      of the duty fixed in Section 3(1)(b) of the Act to the specific category of
D     visitors to the amusement parks such as payment in:-
            a) “lump sum as a subscription or contribution to any society”, or
            b) “for a season ticket” or
            c) “for the right of admission to a series of entertainments” or
E
            d) “any entertainment during a certain period of time”
             14. We find that the writ petitioners do not fall in any of the four
      categories as mentioned above. Category (a) is subscription or contribution
      in lump sum to any society. The expression Society is not defined in the
      Act. Therefore, Society would mean a Society registered under the
F
      Societies Registration Act, 1860 or other similar statutes. The writ
      petitioners would not fall in such category as the payment is not to any
      society. It is not the case of writ petitioners that they have issued a
      season’s ticket to the visitors. A Season ticket would mean a regular
      visitor visiting the amusement park regularly at a specific time.
G            15. Category (d), that entry would be on charging 50% of the
      duty fixed for any entertainment during a certain period of time, depends
      upon the decision of the State Government and/or Municipal Corporation
      to grant that relaxation to enable the writ petitioners or such other
      amusement park owners to charge duty at a lesser rate.
H
    THE STATE OF MAHARASHTRA & ORS. v. PAN INDIA                                661
     PARYATAN LIMITED & ANR. [HEMANT GUPTA, J.]

       16. The prime argument turns around in respect of category (c)           A
as delineated above i.e. for admission to a series of entertainment. The
argument of the learned counsel for the writ petitioners is that when a
ticket is issued by them, it is a ticket for admission to series of
entertainment. We do not find any merit in the said argument. The
amusement park is defined under Section 2(a-1) of the Act to mean a
                                                                                B
place wherein various types of amusements including games or rides or
both are provided fairly, on a permanent basis, on payment for admission.
The payment for admission is defined under Section 2(b) of the Act as
the payment made by a person having admitted to one part of a place of
entertainment and subsequently admitted to another part. Section 2(d)
of the Act deals with admission to an entertainment which includes              C
admission to any place in which the entertainment is held.
       17. The argument that when a lumpsum amount is paid as a right
of admission for all rides and games, then it becomes admission to series
of entertainment, is not tenable. The writ petitioners issue one ticket
including one or more rides or games situated in one compound. It is not        D
the case of the writ petitioners that for every ride or game, it is charging
separately. The admission to entertainment in terms of Section 2(d) of
the Act includes all rides and games which are provided by the service
provider. The series of entertainment as contemplated by Section 3(2)
of the Act does not mean that on a single day ticket for one entry, it can
be treated to be a series of entertainments. The series of entertainments       E
can be where the facility for a game or ride is provided on multiple days
and a combined ticket is issued for events for each day. It will only then
be said to be series of entertainment.
       18. Once an admission ticket is granted, it is not in terms of Section
3(2) of the Act but only in terms of Section 3(1)(b) of the Act. Section        F
3(2) of the Act has no applicability for a visitor to an amusement park
who does not fall in any of the four categories mentioned in Section 3(2)
of the Act. Since, the activities undertaken by the writ petitioners are not
failing part of Section 3(2) of the Act, therefore, they are not entitled to
rebate of 50% provided to specified category of persons in Section 3(2)         G
of the Act.
       19. Section 3(5)(a) of the Act has an overriding effect over Section
3(1)(b) and Section 3(2) of the Act. In respect of the first three years
from the date of commencement of the amusement park, there is no
issue as no entertainment duty is payable. But, in respect of the subsequent    H
662                SUPREME COURT REPORTS                          [2020] 1 S.C.R.


A     two years, the rate of duty leviable is under clause (b) of sub-section (1)
      or, as the case may be, under sub-section (2) of Section 3. Section 3(1)(b)
      of the Act is applicable to all amusement parks whereas Section 3(2) of
      the Act has a limited applicability only in respect of the specified categories
      therein. All amusement parks for all entertainment are not entitled to
      concessional duty in terms of Section 3(2) of the Act. Therefore, the
B
      writ petitioners cannot claim benefit under Section 3(2) of the Act. The
      argument is preposterous as the writ petitioners are firstly claiming the
      benefit under Section 3(2) of the Act and then under Section 3(5)(a) of
      the Act. The amusement parks would be entitled to only one benefit
      either under Section 3(2) or under Section 3(5)(a) of the Act. Since
C     Section 3(2) is not applicable to all amusement parks for all other
      activities, therefore, the entertainment duty in terms of Section 3(5)(a)
      of the Act alone would be leviable. The duty under Section 3(2) of the
      Act would be leviable only in respect of specified categories mentioned
      therein.
D            20. Thus, we are unable to agree with the judgment of the High
      Court that in terms of Section 3(5)(a) of the Act, the entertainment duty
      is 50% of the duty payable under Section 3(2) of the Act. Consequently,
      the order passed by the High Court is set aside. The appeals are allowed.


E     Nidhi Jain                                                      Appeals allowed.




F




G




H