LexSTATE OF MAHARASHTRA & ORS. versus SWANSTONE MULTIPLEX CINEMA (P) LTD
Open in Lexace · Ask the AI about this caseJudgment (excerpt)
[2009] 11 S.C.R. 378
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A
STATE OF MAHARASHTRA & ORS.
V.
SWANSTONE MULTIPLEX CINEMA (P) LTD.
(Civil Appeal No. 4718 of 2009)
JULY 27, 2009
B
[S.B. SINHA AND DEEPAK VERMA, JJ.]
,..,
BOMBAY ENTERTAINMENT DUTY ACT, 1923:
,.:l
c
SS.2(d), 3(1), 3(13) - Entertainment duty- Exemption -
Multiplex theatre complex - Collecting entertainment duty
and retaining the same though it was exempt from
entertainment duty - Held: Entertainment duty is a tax - High
Court was not justified in holding that State Government
D conferred upon the theatre the retention benefit - When a
person collects tax illegally it has to refund it to tax payers -
If tax payers cannot be found, court would either direct the
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same to be paid to and/or appropriated by the State -
·
Supreme Court may, in exercise of its jurisdiction under
E
Article 142 of the Constitution, issue suitable directions -
State shall realize the amount from the theatre to the extent
it had unjustly enriched itself and pay the same to a voluntary
or charitable organization - Doctrine of unjust enrichment -
Constitution of India, 1950 - Article 142.
j,
F
The respondent, a company engaged in the business
of screening of films in its multiplex theatre complex, was
liable to pay duty under the Bombay Entertainment Duty
Act, 1923 @ 45% of payment for admission. The State of
Maharashtra provided exemption in the matter of
G payment of entertainment duty. The respondent availed
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of the said exemption. It, was, however, detected that
during the period for which the respondent was not liable
to pay any duty or was required to pay duty @ 25% only,
it realized the entire duty. The appellants issued a Notice
H
378
STATE OF MAHARASHTRA & ORS. v. SWANSTONE
379
MULTIPLEX CINEMA (P) LTD .
.... )-
to the respondent demanding 75% of the entertainment A
tax reflected by the respondent on its tickets for the period
between 24.6.05 and 22.9.05 amounting to Rs.1,16,95,846
and a further notice dated 21st January, 2006 demanding
Rs.70,39,529/- for the period between 23rd September,
2005 and 5th January, 2006. The respondent filed a writ B
petition before the High Court questioning the legality of
the said demand notice.The High Court allowed the writ
...
petition and quashed the Notices. Aggrieved, the State
Government filed the appeal.
Allowing the appeal, the Court,
c
HELD: 1.1. Entertainment duty is a tax. Tax is a
compulsory exaction. There is no equity about tax. It is a
common burden. The State levied the duty in exercise of 0
its statutory power. Sub-s. (1) of s.3 of the Bombay
·i'.
Entertainment Duty Act, 1923 talks in imperative terms.
Sub-section (13) of s. 3 of the Act provides for an
exemption. It contains a non-obstante clause. Such
exemption is to be granted to the owner of the multiplex
theatre complexes subject to the terms and conditions E
specified in Clause (b) of s. 3(13) of the Act. The crucial
words are "there shall be levied and collected by the State
Government." Such levy and collection is to be made
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from the proprietor of a multiplex theatre complex. By
reason of the said provision, no duty is to be paid for the F
first three years, and for subsequent period of two years,
the levy and collection would be at the rate of 25% of the
rate of duty leviable under Clauses (b) and (c) of sub-s.
(1) of s. 3 of the Act. Indisputably, in terms of Clause (c)
of sub-s. (1) of s. 3 of the Act, the rate of entertainment G
.....
duty on payment of admission fixed by the proprietor
...
within the limits of Brihan Mumbai Municipal Corporation
would be 45% which amount would become payable from
the sixth year. [Para 14] [398-F-H; 399-A-C]
H
380
SUPREME COURT REPORTS
[2009] 11 S.C.R.
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A
1.2. Clause (b) of sub-s. (13) of s. 3 of the Act uses
the words "concession in duty". It becomes available to
~he proprietor of the multiplex theatre complex only in the
event the terms and conditions specified therein are
fulfilled. Sub-clause (i) of Clause (b) of sub-s. (13) of s. 3
B provides that the proprietor shall not charge less payment
for admission than the prevailing highest rate of
admission at any given time in any of the cinema theatres
,..
in the district in which the complex is situated till the
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period of concession under Clause (a) is over. The
c "payment for admission" in terms of s.2(d) must be in
relation to the levy of entertainment duty. The words "in
relation to" are of grExcerpt shown. Read the full judgment & AI analysis in Lexace.