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TMI Blog2009 (12) TMI 888X X X X Extracts X X X X X X X X Extracts X X X X ..... nt tax under the scheme dated August 11, 2000. In pursuance of the said scheme, the petitioner was provided grant-in-aid facility by order dated September 10, 2001 for a period of five years under the scheme dated August 11, 2000, whereby the petitioner's cinema hall was granted complete exemption from payment of entertainment tax for a period of five years. The licence having been granted to the petitioner, she started exhibition of films being licensee of Raj Palace Phoolpur, Azamgarh under the U.P. Cinematograph Rules, 1951. She was served with a notice dated July 31, 2004 by the Entertainment Tax Officer, Azamgarh, asking her to pay a sum of Rs. 19,95,890, the sum realised by her from the cinema goers as entertainment tax. The said notice was given on the ground that under the G.O. dated August 11, 2000, the petitioner was not authorised to collect entertainment tax from the cinema goers and the entertainment tax was unauthorisedly collected by her. A reply dated September 9, 2004 was submitted on the pleas, inter alia, that there is no fault on her part and the statements of realisation of entertainment tax were duly submitted to the officer concerned of the Entertainment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... retain the entertainment tax realised from the cinema goers. He submits that the pro forma of ticket showing the admission fee and the entertainment tax was approved by the Department. The petitioner realised the entertainment tax as per the approved pro forma on form B and as such, the Department cannot take a turn around and ask the petitioner to pay the entertainment tax realised by her. We were taken through the scheme dated August 11, 2000 as also the order dated September 10, 2001 granting exemption for a period of five years under section 11(2) of the Act and form B as provided under rule 13 of the Rules framed under the Act. Sri A.C. Tripathi, learned standing counsel, on the other hand, submits that the petitioner was granted grant-in-aid under G.O. dated August 11, 2000. Under the said G.O., the cinema owners were not authorised to collect the entertainment tax and total exemption from entertainment tax for five years was granted thereunder, which was not so in the earlier G.Os. dated November 9, 1994 and December 7, 1998. Under G.O. dated August 11, 2000, there being no such provision permitting a cinema owner to realise entertainment tax from cinema goers or permitti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cted in an area having more than one lac population, 100 per cent exemption has been granted for the first three years and 50 per cent for the next two years. It may be noted that in this G.O. there is no corresponding provision for payment of any grant by way of aid to such picture hall owners. There is a conscious departure in the G.O. dated August 11, 2000 from the earlier G.Os. in this regard. The Government took a conscious decision under the said G.O. dated August 11, 2000 to grant total or partial exemption from entertainment tax to such new picture halls instead of giving any amount as grant-in-aid to the owners. Entertainment tax is a tax, as is well known, a compulsory exaction. The State Government has been authorised to levy entertainment tax in pursuance of the powers conferred on it by entry 62 of State List of the Seventh Schedule of the Constitution of India. The whole emphasis of the petitioner is on the fact that as there has been no concealment or misrepresentation by the licensee, the impugned demand is illegal. It was submitted that the petitioner prepared form B during the period of grant-in-aid facility as per direction given by the officials of the Entert ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r of cinema is not entitled to pocket the entertainment tax and he has to deposit it with the State Government. In view of section 3 of the Act, when a proprietor of cinema collects tax by way of entertainment tax from the cinema goers, it would be entitled to collect such tax which is subject to levy and collection by the State. The authority in this behalf is implicit. Only for the aforesaid purpose, the statute provides for the mode and manner in which the tax is to be collected. This being so, there is no reason for appropriation of entertainment tax by the proprietor of cinemas. The Government order under consideration was issued in conformity with the above principle and that is the reason that there was a conscious departure from the earlier Government orders. It is not out of place to mention here that the apex court examined the scheme of a cognate Act, namely, the Bombay Entertainment Duty Act, 1923 and the Rules framed thereunder in the case of State of Maharashtra v. Swanstone Multiplex Cinema (P) Ltd. [2009] 24 VST 552 (SC); [2009] 41 NTN 33 and held that the State Government is entitled to recover entertainment tax collected by a proprietor of cinema from the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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