2021 (2) TMI 975 - HC - VAT and Sales Tax

Review petition - Eligibility to get the benefit of subsidy in terms of the Chhattisgarh Naye Cinemagharon Ya Multiplex Cinemagharon Ke Nirman Ko Protsahan Yojna Ke Sahayta Anudan Niyam, 1982 - eligibility not being the Swamis (Proprietor) which was not properly considered - scope of Rule 3 of the 1982 Rules with reference to the date of commencement of operation of Cinema Hall/Multiplex was never adjudicated by the Bench while finalizing the matter - HELD THAT - The provision contained herein is not with regard to imposition to any additional burden but is with regard to the relaxation given, by deleting the rider under Rule 3 of the 1982 Rules. The Rules of 1982 clearly provide for subsidy in respect of the Cinema Hall/Multiplex, construction of which was started after 01.07.1991. Of course, there was a rider that the benefit will be available, subject to the condition that no other Cinema Hall/Multiplex was existing within a radius of 10 KMs. This rider came to be deleted as per the amendment dated 04.03.2010, whereby the benefit of granting subsidy was widened to bring the then non-eligible lot also within the eligibility net. Since the benefit of the subsidy was intended to be paid for a total period of '8 years', the persons who were invited to set up the Cinema Halls/Multiplexes to augment the revenue of the State and who answered the call in the 'positive', despite the hard situations prevailing prior to 04.03.2010, cannot be pushed down for ever, when the barrier was lifted from 04.03.2010 onwards, at least in respect of the remaining period which alone has been ordered by the learned Single Judge. The amendment involved herein, bringing about relaxation for deciding the question of eligibility by deleting the rider which existed earlier under Rule 3 of the 1982 Rules, with effect from 04.03.2010, is different from a rider bringing in some new burden or liability, to be declared as only prospective. This being the position, the intention of the law makers to provide the benefit of subsidy, by way of refund of entertainment tax in respect of all constructions of Cinema Halls/Multiplexes after 01.07.1991 should also take in the parties who have started the operation prior to the cutoff date of 04.03.2010, for the remaining period after 04.03.2010, if the benefit under the Rules is a still continuing one. As it stands so, there is no merit in the contention with reference to the alleged prospectivity of deletion of the rider w.e.f. 04.03.2010. In the said circumstance, we do not find any error apparent on the face of record under this head as well. There is no error apparent on the face of record to invoke the power of review and to grant the relief - Review petition dismissed.

Summary

Issues Involved:
1. Eligibility for subsidy under the Chhattisgarh Naye Cinemagharon Ya Multiplex Cinemagharon Ke Nirman Ko Protsahan Yojna Ke Sahayta Anudan Niyam, 1982 (1982 Rules).
2. Interpretation of the term 'Swami' under the 1982 Rules.
3. Applicability of Rule 3 of the 1982 Rules concerning the commencement date of operation of Cinema Hall/Multiplex.
4. Retrospective vs. prospective application of the amendment to Rule 3 of the 1982 Rules.

Detailed Analysis:

1. Eligibility for Subsidy under the 1982 Rules:
The review petitions were filed by the State challenging the eligibility of the writ petitioners for subsidy under the 1982 Rules. The initial claim for subsidy was denied by the authorities, which led to the filing of Writ Petition (T) No. 1364 of 2014. The Single Judge allowed the writ petition, declaring the petitioners eligible for subsidy from 04.03.2010. The State appealed against this decision, arguing that the petitioners were not entitled to the subsidy as they did not meet the eligibility criteria under the 1982 Rules.

2. Interpretation of the Term 'Swami':
The term 'Swami' was a central issue, as it was not defined under the 1982 Rules. The Division Bench analyzed the term in the context of the 1936 Act and other relevant statutes. The court concluded that 'Swami' should not be confined to the actual owner but should include the occupier/licensee of the Cinema Hall/Multiplex who meets the obligations under the 1982 Rules. This interpretation aimed to make the rules workable and fulfill the purpose of the subsidy scheme.

3. Applicability of Rule 3 of the 1982 Rules:
Rule 3 stipulated that no Cinema Hall/Theater should be within a 10 KM radius to be eligible for subsidy. This condition was deleted by an amendment on 04.03.2010. The State argued that Cinema Halls/Multiplexes constructed before this date were not entitled to the subsidy. The Single Judge addressed this issue, stating that the amendment should apply to all constructions starting after 01.07.1991, making the petitioners eligible for the remaining subsidy period post-04.03.2010.

4. Retrospective vs. Prospective Application of the Amendment:
The State contended that the amendment to Rule 3 should be applied prospectively, benefiting only those who commenced operations after 04.03.2010. The court rejected this argument, noting that the amendment was a relaxation rather than an imposition of a new burden. The court held that the benefit of the subsidy should extend to those who commenced operations before 04.03.2010 for the remaining period after the amendment.

Conclusion:
The court dismissed the review petitions, finding no "error apparent on the face of the record." The interpretation of 'Swami' was upheld, and the prospective application of the amendment was rejected, allowing the petitioners to claim the subsidy for the remaining period post-04.03.2010. The court emphasized that the review petitions were an attempt to reargue the case rather than pointing out any apparent error.