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2018 (5) TMI 2160 - HC - Indian LawsLevy of Entertainment Tax - carriage of passengers on aerial ropeway to Naina Deviji Temple under the Himachal Pradesh Entertainment Duty Act, 1968, more particularly, under the amendment, which was carried vide H.P. Entertainments Duty (Second Amendment) Act, 1999 (Act No. 3 of 2000) - whether the State Government has the competence to issue notification imposing entertainment tax on ropeway? - invocation of principle of ejusdem generis. HELD THAT - The aerial ropeway of the petitioner is providing entertainment and, therefore, the only question that remains for consideration is whether in the absence of any provision in the H.P. Aerial Ropeway Act, the State by amending the Entertainments Duty Act can recover the same. As observed by the Hon'ble Supreme Court, only Entries 45 to 66 of the Seventh Schedule are those that can be taxed. The Aerial ropeway Act was enacted to authorize, facilitate and regulate the construction and working of aerial ropeways in Himachal Pradesh without there being any provision of levying tax of the instant kind, whereas on the other hand, the Entertainments Duty Act was enacted to provide for levy on entertainment duty in respect of admission to public entertainments. The mere fact that no amendment was made in the Aerial Ropeway Act and the amendment was made in the Entertainments Duty Act is inconsequential as the entertainment duty in respect to admission to public entertainment could only be taxed under the Entertainments Duty Act, as such, we find it expressly difficult to agree with the view of the learned Single Judge of High Court of Uttrakhand, who only on the basis that no amendment had been carried in the United Provinces Aerial Act, 1922 had quashed the amendment. It is more than settled that as a general rule when two different words are used by a statute, prima facie one has to construe different words as carrying different meanings. Even though at sometime two different words are used in one and the same statute to convey the same but i.e. exception rather than the rule. The word entertainment has to be understood in the contest that was intended by the legislature with respect to the Entertainments Duty Act, keeping in mind the purpose for which the statute was enacted - there is no provision in the H.P. Aerial Ropeway Act to levy tax or duty as this Act only authorizes to facilitate and regulate the construction and working of aerial ropeways in Himachal Pradesh, whereas on the other hand, Entertainments Duty Act has been specially enacted by the State under Entry 62 of List-II for imposition of taxes and duties on entertainments. The aerial ropeway is providing entertainment and, therefore, in such circumstances, the doctrine of ejusdem generis cannot be pressed into service to defeat the dominant statutory purpose of the entertainment tax. Merely because it is the aerial ropeway, it does not mean that it can only be taxed under the Aerial Ropeway Act and not under the Entertainments Duty Act. Even otherwise, the definition of entertainment as originally defined and even thereafter it was amended would show that the same deals with all different aspects of entertainments like exhibition, performance, amusement, game, sport or race or lastly aerial ropeway. Thus, once each one of the words carries a separate and distinct meaning then obviously, the principle of ejusdem generis cannot be invoked. Petition dismissed.
Issues Involved:
1. Liability of the petitioner-company to pay entertainment tax under the Himachal Pradesh Entertainment Duty Act, 1968, as amended by the H.P. Entertainments Duty (Second Amendment) Act, 1999. 2. Competence of the State Government to issue a notification imposing entertainment tax on the aerial ropeway. Detailed Analysis: 1. Liability to Pay Entertainment Tax: The primary question was whether the petitioner-company, operating an aerial ropeway to Naina Deviji Temple, is liable to pay entertainment tax under the Himachal Pradesh Entertainment Duty Act, 1968, as amended by the H.P. Entertainments Duty (Second Amendment) Act, 1999. The petitioner contended that their ropeway service, which transports pilgrims to the temple, does not constitute "entertainment" and should not fall under the purview of the amended Act. They argued that the Himachal Pradesh Ropeway Aerial Act, 1968, does not provide for any duty levy, and thus, the imposition of such a tax under the Entertainment Duty Act is indirect and unauthorized. The court examined the definition of "entertainment" under the amended Act, which includes "any exhibition, performance, amusement, game, sport, race, an aerial ropeway carrier" to which people are admitted on payment. The court also referred to Entry 62 of List-II of the Seventh Schedule of the Constitution, which allows states to impose taxes on "luxuries, including taxes on entertainments, amusements, betting, and gambling." The court concluded that the aerial ropeway constitutes "entertainment" as it provides amusement and mental diversion to users, thus falling within the scope of the amended definition. The court rejected the petitioner's argument, stating that the legislative intent was clear in broadening the scope of "entertainment" to include aerial ropeways. 2. Competence of the State Government: The petitioner challenged the State Government's competence to levy such a tax, arguing that the Himachal Pradesh Aerial Ropeway Act, 1968, does not contain provisions for levying taxes and that the State Legislature lacks the authority under Entry 13 of List-II of the Seventh Schedule to impose such a tax. The court clarified that Entry 62 of List-II specifically empowers the State to impose taxes on entertainments and amusements. The court emphasized that legislative entries should be liberally interpreted and that the true nature and character of the enactment should be considered. The court found that the Entertainments Duty Act, enacted under Entry 62, was the appropriate legislation for imposing such a tax, and the absence of a tax provision in the Aerial Ropeway Act was inconsequential. The court also referred to the doctrine of pith and substance, noting that if an enactment substantially falls within the powers conferred by the Constitution, it cannot be held ultra vires merely because it encroaches upon matters assigned to another legislative heading. The court held that the real nature of the levy was on entertainment, and thus, the State Legislature was competent to impose the tax. Additional Considerations: The court also addressed the principle of ejusdem generis, which the petitioner invoked to argue that the term "aerial ropeway" should be read in the context of other forms of entertainment listed in the Act. The court dismissed this argument, stating that the principle could not be applied to defeat the statutory purpose of the entertainment tax. The court noted that each term in the definition of "entertainment" carries a distinct meaning, and the broad legislative intent was to include aerial ropeways within the scope of taxable entertainments. Conclusion: The court dismissed the petition, holding that the petitioner-company is liable to pay entertainment tax under the amended Himachal Pradesh Entertainment Duty Act, 1968, and that the State Government has the legislative competence to impose such a tax. The court found no merit in the petitioner's arguments and upheld the validity of the tax imposition.
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