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TMI Blog2007 (7) TMI 580X X X X Extracts X X X X X X X X Extracts X X X X ..... 07 - MISRA P.K. AND BANUMATHI R. , JJ. The judgment of the court was delivered by P.K. MISRA J. In this batch of writ petitions, the petitioners have challenged the validity of the provisions contained in the Tamil Nadu Entertainments Tax (Third Amendment) Act (15 of 2003). The Tamil Nadu Entertainments Tax Act, 1939 (hereinafter referred to as, the Act ) contains provisions regarding levy of entertainment tax on various modes of entertainment including on cinema. Section 4 of the Tamil Nadu Entertainments Tax Act, 1939 envisages payment of entertainment tax at the rate of 25 per cent of the gross payment for admission for any new film and at the rate of 20 per cent for the old. By virtue of the provisions contained in such Amendment Act (No. 15 of 2003), hereinafter referred to as the (Third Amendment) Act , certain provisions have been inserted in the Tamil Nadu Entertainments Tax Act, 1939 making provisions for payment of entertainment tax at a higher rate on tickets of dubbed films . Section 3(3A), inserted by (Third Amendment) Act, is a definition clause according to which dubbed film means any film for cinematograph exhibition made or produced origin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment of entertainment tax between films originally produced in Tamil and films originally produced in any other language but, subsequently dubbed in Tamil. The liability sought to be fastened by such amendment, i.e., payment of entertainment tax at a higher rate in respect of dubbed Tamil films, being discriminatory, arbitrary, capricious and without any rationale, is violative of the provisions contained in articles 14 and 19 of the Constitution of India. This also affects the freedom of expression. In the counter-affidavit originally filed on behalf of the State Government, it has been stated that even before the present enactment, by virtue of the Tamil Nadu Entertainments Tax (Second Amendment) Act, 1994 (Act 38 of 1994), hereinafter referred to as [ (Second Amendment) Act ], the provisions contained in the Tamil Nadu Entertainments Tax Act, 1939 have been amended. As per the provisions then extant before such amendment by virtue of Tamil Nadu Act 38 of 1994, entertainment tax was levied at the rate of 40 per cent. By virtue of Act 38 of 1994, a classification was made between dubbed films and non-dubbed films and entertainment tax payable in respect of dubbed films was 50 p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the films produced in other languages, but subsequently dubbed in Tamil, form different classes and there is no discrimination either on the basis of language alone or even otherwise. In course of hearing of the present batch of writ petitions, learned Special Government Pleader, apart from highlighting the stand taken in the counter-affidavit, relevant portions of which have already been summarised, has submitted that there being a strong presumption of validity of a statute, it is for the petitioners to plead and prove as to how the provisions contained in the (Third Amendment) Act are discriminatory or violative of article 19. On the other hand, it is submitted that the object is to encourage and protect the producers, who produce their films in Tamil, as they have to face stiff competition in the shape of dubbed Tamil films. In Aashirwad Films v.Union of India [2007] 7 VST 714 (SC); [2007] 3 CTC 596, validity of the provisions of the Andhra Pradesh Entertainments Tax Act, 1939 providing for payment of entertainment tax at the rate of 10 per cent for Telugu films and 24 per cent for non-Telugu films, was in question. In the said case, it was observed: 10. A taxing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s to take refuge of exception under reasonable differentia category under article 14, it must stay clear of the broad constitutional mandate as mentioned hereinbefore. In the instant matter, the classification solely on the basis of language, fails in its initiative to be called reasonable. The classification thus is arbitrary and as such violative of article 14 of the Constitution of India. 25. The purported classification only on the basis of language without anything more and in particular having regard to the difference in the rate of tax, in our opinion, is ex facie arbitrary. The burden was, therefore, on the State to show that the imposition was justified. Different rates of entertainment tax had not been levied having regard to the nature of theatre, the area where they were situated or extent of occupancy, etc. It has not been explained as to whether cinema theatres exhibiting Telugu films suffer from any disadvantage which others had not been. It has not been shown as to why the same theatre where films in different languages are exhibited would be a class apart, only because at different times it exhibits films produced in different languages. Moreover, how Telugu f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rtainment tax on films dubbed into Tamil and screened in this State by ten percentage points in each slab by amending the Tamil Nadu Entertainments Tax Act, 1939 (Tamil Nadu Act X of 1939) suitably. In spite of the valiant efforts made by the learned Special Government Pleader, we are not impressed by the submission made on behalf of the State justifying the imposition of entertainment tax at a higher rate for the films dubbed in Tamil. First of all it has to be remembered that burden of entertainment tax is ultimately borne by moviegoer rather than by a producer, distributor or film exhibitor. The taxing event under the Act is on the entertainment of the moviegoer. The rate of tax is determined on the basis of the amount collected from such person. We fail to see any reason as to why a person who sees a film dubbed into Tamil would be required to pay more than a person who watches an original Tamil film. Even assuming that it is the producer who has to pay the tax, discrimination is writ large on the face of it and we fail to see any rationale for the purpose of payment of entertainment tax at different rates. A producer, who produces a film in Tamil and dubs such film in o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... several decisions of the Supreme Court holding that there is a greater latitude in classifying different persons for the purpose of taxation at different rates. It is not necessary to refer the decisions on such aspect as the principle is well known and, moreover, many of such decisions were noticed and analysed in Aashirwad Films v. Union of India [2007] 7 VST 714 (SC); [2007] 3 CTC 596. Learned counsel for the State has also submitted that similar provisions had been made in 1994 and the objects and reasons of such provisions constitute a valid basis. The fact that similar provisions have been made in 1994 is immaterial, particularly when subsequently such provisions had been withdrawn. The object of giving protection to producers of original films in Tamil may appear to be justified only when a tunnel vision is adopted. We do not find any reasonable nexus between the object to be achieved and the basis of classification. We are also not impressed by the submission made by the Special Government Pleader that for dubbing a picture no artistic skill is required nor it has the effect of encouraging the local artists. Even for dubbing the film certain amount of skill in the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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