Petition v. September

Judgment

3. Pan India Paryatan Limited, a Company incorporated under the Companies Act,1956 and having its Registered office at 135, A.B.Road,Worli, Bombay - 400 018. Shri Ashok Goel of Bombay, Indian Inhabitant being the Director and Shareholder of the 1st Petitioner abovenamed having his office at 135, A.B.Road, Worli, Bombay - 400 018. Versus Versus Versus The State of Maharashtra Through Government Pleader The Collector, Bombay Suburban District having his office at BMRDA Bldg., 4th Floor, Bandra (East), Bombay - 400 051. Additional Collector, Bombay Suburban District having his office at BMRDA Bldg., Second Floor, Bandra Kurla Complex, Bandra (East), Bombay-400051. ..Respondents Dr.V.V.Tulzapurkar with S.Parekh i/b. S.D.D.& Phatarphekar for the Petitioners. Mr.K.R.Belosey, Government Pleader for Respondent - State. PETITION NO.2009 OF 1998 WRITWRITWRIT PETITION NO.2009 OF 1998 PETITION NO.2009 OF 1998 WITHWITHWITH

1. Pan India Paryatan Limited, a Company incorporated under the Companies Act,1956 and having its Registered office at 135, A.B.Road,Worli, Bombay - 400 018. ..Petitioners :2:

2. Shri Ashok Goel of Bombay, Indian Inhabitant being the Director and Shareholder of the 1st Petitioner abovenamed having his office at 135, A.B.Road, Worli, Bombay - 400 018. Versus Versus Versus The State of Maharashtra The Collector, Bombay Suburban District having his office at BMRDA Bldg., 4th Floor, Bandra (East), Bombay - 400 051. District Officer, Bombay Suburban District having his office at BMRDA Bldg., Second Floor, Bandra Kurla Complex, Bandra (East), Bombay-400051. ..Respondents

3. Dr.V.V.Tulzapurkar with S.Parekh i/b. S.D.D.& Phatarphekar for the Petitioners. Mr.Birendra Saraf, Special Counsel for Respondent - State. CORAM : DR.S.RADHAKRISHNAN & : DR.S.RADHAKRISHNAN & CORAM CORAM : DR.S.RADHAKRISHNAN & SMT.V.K.TAHILRAMANI,JJ. SMT.V.K.TAHILRAMANI,JJ. SMT.V.K.TAHILRAMANI,JJ. DATEDATEDATE : 19TH DECEMBER,2006 : 19TH DECEMBER,2006 : 19TH DECEMBER,2006 JUDGMENT (PER : DR.S.RADHAKRISHNAN,J.) (PER : DR.S.RADHAKRISHNAN,J.) JUDGMENT JUDGMENT (PER : DR.S.RADHAKRISHNAN,J.)

1. By this common Judgment, we are disposing of Writ Petition No.111 1996 Writ Petition No.2009 1998, involves interpretation certain provisions Bombay Entertainment Duty Act,1923 (hereinafter referred to as "The Act") pertaining to amusement park. :3:

2. . The undisputed facts are as follows:- The Petitioners own and run an amusement park within limits Greater Bombay, opened public admission 25th December,1989. Petitioners charge a lumpsum amount admission The entertainment to the amusement park, and are required to pay entertainment duty for admission to the park.

3. The Petitioners, by a letter dated 4th October,1994 sought confirmation entertainment levied

3.75% consolidated ticket. By a October,1994, Respondent No.2 confirmed 12th same. However, a Communication 7th January,1995 Respondent No.3 clarification received Revenue Forest Department Respondent No.1 letter No.ENT/3894/CR-227/7-1 December,1994, informed Petitioners required

7.5% 19th

3.75%, called Petitioners within days. Petitioners preferred Writ Petition No.37 1995 challenging legality validity communication 7th January,1995. Court, Petitioners permitted withdraw Petition a liberty a Petition. The Petitioners a representation By Respondents. The latter reiterated stand. :4: Petitioners protest continue so. The Respondents recover entertainment

7.5% respect period 16th September,1994 24th December,1994 and at the rate of 15% from 25th December,1994, from the Petitioners.

4. The Petitioners have filed Writ Petition No.111 1996 challenging legality & validity action Respondents seeking recover entertainment double statutorily prescribed i.e.

7.5% instead

3.75% period 16th September,1994 24th December,1994. Another Writ Petition No.2009 1998 preferred challenging action Respondent seeking recover payable during 25th December,1989 23rd August,1990 already adjusted against refund payable Petitioners. The

questions arising out of the two Writ Petitions are, as follows: Rate of entertainment duty payable by the i. Petitioners for a period from 16th September,1994 to 24th December,1994. ii. commencing 25th December,1994. Rate of duty payable for the period Whether action of Respondents in seeking recover iii. December,1989 adjusted justified Petitioners, This question is raised by Writ Petition No.2009 of 1998. against 23rd payable during refund August,1990 payable & 25th already law. :5:

5. In course judgment, contentions submissions of two Petitions are enumerated separately:- . Dr.Tulzapurkar, In Writ Petition No.111 of 1996, learned Senior Counsel appeared behalf Petitioners. It putforth reading Section 3 Act, Petitioners entitled benefits available Section providing payment entertainment duty. It argued legislative intent inferred language provisions Respondents’ contention accepted, "other amusement parks" Section 3(2) Act. In Mathuram Mathuram Mathuram Agarwal Agarwal Agarwal Vs. Vs. Vs. StateStateState of Madhya of Madhya of Madhya Pradesh Pradesh Pradesh AIR AIR AIR 2000 2000 2000 SC SC SC 109 109 109 paragraph No.11 Hon’ble Supreme Court "the intention legislature a taxation statute gathered language provisions particularly language unambiguous. In a taxing Act possible assume intention governing purpose statute stated language. It economic result sought obtained making provisions relevant interpreting fiscal statute. ........Words cannot substituted meaning statute spirit intention legislature." a a :6: Also A.V.Fernandez A.V.Fernandez A.V.Fernandez Vs. Vs. Vs. State State State Kerala Kerala Kerala AIRAIRAIR 1957 1957 1957 SC SC SC 657 657 657 paragraph No.29, Hon’ble Supreme Court "It construing fiscal statutes determining liability a subject tax, regard strict letter merely spirit statute substance law." Further, ................ "if covered within corners provisions taxing statute, imposed inference analogy trying intentions legislature considering substance matter." Reliance placed Sales Sales Sales Tax Tax Tax Commissioner Commissioner Commissioner Vs. Vs. Vs. Modi Modi Modi Sugar Sugar Sugar Mills Mills Mills AIRAIRAIR 1961 1961 1961 SC SC SC

1047. 1047 1047 The disregarded equitable considerations and presumptions in case of interpretation of a taxing statute.

6. Senior In the light of the cases cited, the learned Counsel Dr.Tulzapurkar strongly contended Petitioners entitled benefits concessional provided section 5(a) Section 3 Act, inserted Maharashtra Ordinance No.XVI 1992, period 25th December,1992 24th December,1994. Dr.Tulzapurkar submitted recovering

7.5% misreading provisions Respondents, forth, failed Act. account benefit available Petitioners :7: sub-section 5(a) Section 3 period 4th & 5th commencement concession amusement abovementioned provision provides concession exception. Further, benefit concessional provided therein applicable irrespective of rate of duty specified in Section 1(b) of the Act.

7. It was putforth by Dr.Tulzapurkar that provisions Sub Section(2) Section 3 Act required construed interpreting appearing therein without adding "other amusement parks". learned Senior Counsel submitted language aforesaid provisions clearly that the Petitioners are governed by the provisions of Section 3(2) of the said Act. The

8. It was submitted by the learned Senior Counsel construction Section 3(2) a manner exclude amusement therefrom defeat purpose object granting exemption. In Commissioner Commissioner Commissioner Income Income Income Tax, Tax, Tax, Banglore, Banglore, Banglore, Vs. Vs. Vs. M/s.Shaan M/s.Shaan M/s.Shaan Finance Finance Finance (P) (P) (P) Ltd., Ltd., Ltd., Banglore Banglore Banglore AIR AIR AIR 1988 1988 1988 SC SC SC 1372 1372 1372 "The interpret statute stands doubt, a manner favourable payer." The learned Senior Counsel Petitioners sought impugned :8: actions Respondents principles down. The principle spirit adopted Commissioner Commissioner Commissioner Sale Sale Sale Vs. Industrial Coal Enterprises, AIR 1999 SC TaxTaxTax Vs. Industrial Coal Enterprises, AIR 1999 SC Vs. Industrial Coal Enterprises, AIR 1999 SC

1324. 13241324

9. The learned Senior Counsel for the Petitioners contended Respondents seeking recover amount violation Articles 265 300A Constitution India. The impugned action clearly unreasonable violative Article 14 Constitution India. It further submitted learned Senior Counsel impugned action effect unreasonable restrictions Petitioners carry on business under Article 19(1)(g) of the Constitution of India.

10. It is the argument of the Petitioners that Respondent No.2 himself having accepted effective payable respect amusement

3.5% period 16th September,1994 24th December,1994, impugned action seeking recover

7.5% without affording opportunity Petitioners gross violation of principles of natural justice and the same is a nullity. :9:

11. The petitioners have prayed for a Writ prohibiting Respondents, servants agents from, manner recovering entertainment

7.5% during 16th September,1994 24th December,1994 15% thereafter. Further, Petitioners prayed a Writ Certiorari examine the legality and validity and quash impugned communication dated 7th January,1995.

12. The learned Government Pleader, Mr.Belosey strongly contended Section 3(2) Act construed exclude "amusement park". Mr.Belosey submitted necessity incorporate "other amusement park", Section 3(2) Act. Mr.Belosey submitted resorting Section 3(2) Act, Petitioners trying double concession, Section 3(2) of the Act should be construed to exclude amusement park.

13. The Petitioners have filed Writ Petition No.2009 1998 challenging interalia, validity action Respondents legality seeking recover entertainment payable during period 25th December,1989 23rd August,1990 already adjusted against refund payable Petitioners accordance Respondent No.2 30th December,1993 on the ground that the Auditor General has objected to such an adjustment being made. :10:

14. The learned Senior Counsel Dr.Tulzapurkar for Petitioners submitted effect 1992 amendment Bombay Entertainments Duty Act, 1923, Maharashtra Ordinance No.XVI 1992, w.e.f. 25th December,1989, entertainment payable Petitioners a period 3 subsequent 2 50% leviable Section 3 Act thereafter The payable specified Section Petitioners therefore contend

3. aforesaid Section 3(5)(a) Act, Petitioners became entitled refund entertainment for the period 25th December,1989 to 30th December,1993.

15. The office of Second Respondent by communication, informed Petitioners payable period amounting Rs.81,22,828/- adjusted refund claimed balance Rs.12,68,516.64 adjusted against payable 2nd December,1993. The Respondent communicated Petitioners, granting refund, interalia informing objections Auditor General adjustments against arrears future payment duty. By communication, Petitioners informed refund illegal, Petitioners directed Rs.93,91,345.54 ground adjustment against :11: future liability amounts indirect refund resulting in unjust enrichment to the proprietor and the same is not legally permissible.

16. The learned Senior Counsel for the Petitioners submitted Respondents jurisdiction authority retain collected without authority law. Under Section 9C Act, Respondents refund entertainment excess payable. It further submitted provision recover refund ground doctrine unjust enrichment, however, learned Senior Counsel submitted doctrine applicable present case. It contended nothing record Petitioners recovered entertainment visitors Park, as no entertainment duty was separately charged and recovered.

17. Further, as it was contended by the learned Senior Counsel impugned action Respondent seeking recover amount already refunded ground of unjust enrichment would render provisions of Section 9C of the Act redundant.

18. The Petitioners also submitted that the impugned communications seeking recover refunded amount issued violation principles :12: natural justice, denying opportunity before issuance communications. The Petitioners finally submitted impugned actions & communications invalid, violative of Articles 265 & 300A of Constitution of India and are liable to be set aside.

19. The Petitioners have prayed for in Writ Petition No.2009 1998 a Certiorari appropriate Writ, direction Article 226, calling records impugned communications 15th May,1998 30th May,1998, legality validity orders. They further prayed a Writ Mandamus directing Respondents (i) withdraw cancel the said communications and (ii) quash and set aside the impugned communications.

20. Mr.B.Saraf, the learned Counsel appeared on behalf Respondent State placed reliance two decisions given by the Hon’ble Supreme Court on the point of unjust enrichment.

21. State of MP Vs. Vyankatlal & In the case of State of MP Vs. Vyankatlal & State of MP Vs. Vyankatlal & Another Another Another (1985)2 (1985)2 (1985)2 SCC SCC SCC 544, 544 544 burden paying amount question transferred Respondents purchasers therefore, entitled a refund. The amount deposited created development sugar-cane. The :13: Hon’ble Supreme Court question refunding amount Respondents case, eventually amount towards the Fund, as doing so would virtually allow Respondents unjust enrichment.

22. Ors.Ors.Ors. SCCSCCSCC refund liability Entry Tax Officer, Banglore & In another case Entry Tax Officer, Banglore & Entry Tax Officer, Banglore & Vs. Vs. Vs. Chandanmal Chandanmal Chandanmal Champalal Champalal Champalal & & & Co. Co. Co. & & & Ors. Ors. Ors. 1994(4) 1994(4) 1994(4) 463, 463 463 Hon’ble Supreme Court Karnataka High Court insofar directed amount excess Respondents. The Court directions nature unjust enrichment. The Court considered decisions StateStateState MP MP MP Vs. Vs. Vs. Vyankatlal Vyankatlal Vyankatlal (Supra), Amar (Supra), Amar (Supra), Amar Nath Nath Nath Om Om Om Prakash Prakash Prakash Vs. Vs. Vs. State State State Punjab Punjab Punjab (1985) (1985) (1985) 1 1 1 SCC SCC SCC 345 345 345 Indian Indian Indian Oil Oil Oil Corporation Corporation Corporation Vs. Vs. Vs. Municipal Municipal Municipal Corporation, Corporation, Corporation, Jallandhar Jallandhar Jallandhar 1993(1) 1993(1) 1993(1) SCC SCC SCC

333. 333 333 It therein a normal presumption passed purchasers/consumers. The burden establish otherwise person alleges it; absence allegations, a direction refund called for. Hence, Mr.Saraf submitted that the Petitioners should establish that there was no unjust enrichment.

23. To understand the entire controversy, it would be necessary to consider the following provisions of Bombay Entertainment Duty Act,1923:- :14: 2(a-1) :- Section 2(a-1) :- Section 2(a-1) :- Section a including excluding video exhibition] are provided fairly on permanent basis, on payment for admission; exhibition wherein various "amusement park" means cinematograph amusements [but [or, persons "entertainment" performance, (a)(a)(a): exhibition, payment, exhibition television, subscription charges manner whatsoever] [but does not include magic show]. network payment a includes amusement, admitted attached persons required installation contribution charges collected television antenna connection (b)(b)(b): the levy of entertainments duty,] includes- payment for admission" [in relation to any payment made by a person who, admitted subsequently (i) having entertainment, another payment involving duty or more duty is required, thereof a admitted admission levied payments a There Government 3(1): 3(1) 3(1) Section Section Section admission (hereinafter referred to as "entertainments duty") at the following rates, namely :- antenna entertainment exhibition [except television] a In the case of every entertainment, (b)(b)(b) [other including exhibition by means of any type of antenna or cable television] exhibition exhibition [video cinematograph that, further Provided admission for games and rides, whether charges separately or not, respect amusement park, payment including amusement entertainment admission payment 15 Section Section Section lumpsum 3(2): 3(2) 3(2) Where entertainment is made a subscription society, admission a season a payment by means ticket series admission a contribution :15: right, certain period entertainments a privilege, entertainment admission reduced lumpsum at the rates specified in clause (b) of sub-section (1). facility involving further [the without charge, levied (2) Act sub-section 3(5)(a): 3(5)(a): 3(5)(a): Section Section Section contained provisions provisions levied, State respect of an amusement park in the following manner, namely :- clause 25th Government, (b), entertainment time, admission payment entertainment 50 Notwithstanding subject during combined a anything effect December,1989, proprietor entertainments (i)(i)(i) for the first three years from the date of commencment of the amusement park, no duty ; (ii)(ii)(ii) leviable or, as the case may be, sub-section (2) of section 3; subsequent cent, clause years, (b) sub-section (1) (iii) (iii) (iii) entertainments specified clause(b) as the case may be, sub-section (2) of section 3. leviable year, amount sub-section(1) or, Explanation - For the purpose of this Explanation Explanation sub-section, (i) opened public amusement admission shall be deemed to be the date of commencemnt of the amusement park; (ii) amusement construed as a fresh commencement of the amusement park. change amusement change management (b)(b)(b) amusement continued available if, the concession of duty under clause(a) continuously continued, if, proprietor commenced levied commencement amusement :16: amusement sub-section clause may, sub section (2) of section 3 and the proprietor shall be liable to pay the same.] (b) (1) specified 9C: 9C: 9C: Where amount Section Section Section entertainment payable, shall, application proprietor behalf, may be necessary and in such manner as may be prescribed. Collector a excess proprietor excess refunded verification

24. Park A bare perusal of Section 3(1)(b) proviso, Section 3(2) Act entrertainment levied Amusement percent 15%,

7.5%. Thereafter account Section 3(5)(a) & (b) Act, percent above. That

3.75%. Therefore provisions, i.e. Section 3(1)(b), Section 3(2) Section 3(5)(a) & (b) Act, years, Amusement Park, entertainment subsequent years, entertainment duty,

3.75% (i.e. 4th & 5th year). Thereafter from the Sixth year onwards, the entertainment duty would be 7.5%.

25. 3(2), The Legislature was very much aware of Section Section 3(5)(a) (b) introduced amendment. It pertinent Section 3(5)(a) (b), specifically refers Section 3(2). One effect :17: provisions Act. The argument learned Government Pleader Mr.Belosey, Section 3(2) exclude amusement park, cannot sustained. If Legislature intended so, Section 3(2), provided "other amusement park". One cannot words in Section 3(2). The Statute has to be read as it is, and one cannot add words which are not there.

26. Therefore on a bare reading of Section 3(1)(b) proviso, Section 3(2) Section 3(5)(a) (b) far as amusement park is concerned, the following will be the pattern of levy of entertainment duty:- i) commencement, there will be no duty, For the first three years after ii) will be 3.75%, For the 4th and 5th year, the duty iii) payable would be 7.5%. From 6th year onwards, the duty

27. After hearing all the learned Counsel for the parties, considering judgments cited, provisions Act, mainly Sections 3(1)(b), Section 3(2) Section 5(a) and (b) of the Act, we hold that the rate of tax payable by Petitioners, would be as follows :- For the first three years from date of i. commencement of park the Petitioners are not required to pay any duty, :18: Duty for the 4th and 5th year, from the commencement, ii. rate of 3.75%, applying concessional provision. payable iii. Duty payable during 6th year from the date of commencement of park and thereonwards, is at rate of 7.5%.

28. We also hold that in response to question whether Section 3(2) applicable amusement parks, provision expressly excluded indicated exclusion amusement defined Section 2(a-1) Act. It imperative consider paragraph No.11 Sale Sale Sale Tax Tax Tax Commissioner Commissioner Commissioner Vs. Vs. Vs. Modi Modi Modi Sugar Sugar Sugar Mills Mills Mills (Supra), (Supra), (Supra), Supreme Court taxing statutes cannot interpreted assumptions presumptions. "The Court squarely statute interpret them. It interpret a taxing statute clearly expressed; cannot anything not expressed, it cannot import provisions in the statutes so as to supply any assumed deficiency."

29. The first two questions as regards the rate of duty payable by the Petitioners are answered as mentioned hereinabove.

30. The answer to the third question raised, we burden justifying benefit passed Consumer :19: unjust enrichment, Petitioners. It Petitioners produce sufficient material establish against unjust enrichment. The Petitioners liberty approach appropriate authority purpose, relevant material appropriate authority to decide the same expeditiously.

31. Rule is made absolute in both the above Petitions in terms of the above, however with no order as to costs. (DR.S.RADHAKRISHNAN,J.) (DR.S.RADHAKRISHNAN,J.) (DR.S.RADHAKRISHNAN,J.) (SMT.V.K.TAHILRAMANI,J.) (SMT.V.K.TAHILRAMANI,J.) (SMT.V.K.TAHILRAMANI,J.)