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TMI Blog1985 (3) TMI 301X X X X Extracts X X X X X X X X Extracts X X X X ..... hree petitions, the proprietors of various hotels, three in number, have come forth with similar grievance. In the third petition, one solitary proprietor individually has come forth with the similar complaints. That is why we have stated that common questions of law arose in these three petitions and they can be conveniently dealt with and disposed of by a joint treatment. 3. The vires of Section 6A is challenged in these petitions. Section 6A is reproduced below: 6A.(1) There shall be levied and paid to the State Government, a tax on an entertainment by video cassette recorder or video cassette player on television or videoscope calculated at the following rates, namely: (a) in any place of entertainment other than that mentioned in Clause (b) (I) within the limits of a local area, the population of which as ascertained at the last preceding census and notified by the State Government in the official gazette after such census is more than 1,00,000, two rupees per seat in such place of entertainment; (II) within the limits of a local area, the population of which as ascertained at the last preceding census and notified by the State Government in the official gazette ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... day; and (ii) six rupees per seat per day where the proprietor has declared that he holds more than three entertainments per day. (2) in Sub-clause (II) of Clause (a) of Sub-section (1) (i) three rupees per seat per day where the proprietor has declared that he holds not more than three entertainments per day; and (ii) four rupees per seat per day where the proprietor has declared that he holds more than three entertainments per day. (e) A proprietor who has opted for payment of tax under Clause (a), may at any time but not before the expiry of a, period of twelve months, by a notice in such form as may be prescribed, addressed to the prescribed officer, revoke his option from the commencement of any month following that in which the notice is given. (4) For the purpose of levy of tax under Sub-section (1) every proprietor shall furnish such returns to the prescribed officer in such manner or such period and before such date as may be prescribed. (5) Save as otherwise provided in Sub-sections (1) to (4), the provisions of this Act (except sections 3, 4 and 6) and the rules made thereunder shall, so far as may be, apply in relation to the tax leviable und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gument of Mr. Vakharia that it is a tax imposed for the privilege of carrying on any trade or calling also was raised before the Supreme Court in that case and that too was negatived. We, therefore, do not elaborate this point any further, it being covered by the judgment of the Supreme Court on an almost identical matter. 5. The further challenge to Section 6A was based on the presumption that there will be three shows every day, but we find that Section 6A(2) makes it clear that the presumption that has been referred to above is subject to the proprietor informing the prescribed officer at such time and in such manner as may be prescribed that the particular number of shows are to be held. Even the words of taxation referred to in Section 6A(1) also speak of a presumption, but presumptions are always rebuttable unless they are stated to be conclusively proved or conclusively presumed. We, however, hold, though upholding the right of the State Legislature to provide for a consolidated tax, that the provision that the consolidated tax is to be worked out on the basis of the total number of seats available is illegal. The said provision is ultra vires because it does not take car ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s seeking admission is the gross collection capacity. 16. Similar is the position in the case of video exhibition where lump sum duty is to be paid on the basis that the owner of a video exhibition conducts all the shows which he is permitted to conduct and that for those shows all the seats in the place of entertainment are occupied. In our opinion, this is not a tax on entertainment at all which the State Legislature is entitled to levy under item 62 of the State List. In order that the entertainment duty should amount to a tax on entertainment it should be levied on entertainment which is actually held and not on entertainment, which is theoretically capable of being held. Looking to the provisions which have been examined in details, it is clear to us that the said provisions do not take into account entertainment that is actually held by the owner of the touring cinema or the owner of the video exhibition. The basis on which tax can be validly levied is the fact of entertainment. The taxing event is the entertainment. If there is no entertainment at all, the question of levying entertainment tax in exercise of the legislative powers conferred upon the State Legislature does ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e free-access to the video cinema at odd hours. Though Clause (ii) of Rule 19 does not specifically state the purpose for which a Police Officer can be required to have free access to the video-cinema, from the very nature of things, it can be spelt out that a Police Officer could be authorised to enter the precincts of the video cinema only for the purpose of maintaining law and order. As far as Rule 13(1) is concerned, we interpret the words in the vicinity of the cinema to mean in the vicinity of the video-cinema. and not any other cinema. The word the is a definite article and when the same cinema is referred to earlier, the subsequent reference to the cinema is the video cinema. Even Mr. Vin, the learned Govt. Pleader, fairly conceded before us that with respect to Rule 13(1), the phrase in the vicinity of cinema would and should mean in the vicinity of cinema and with respect to Rule 19(ii) also, he conceded that a Police Officer could be required to have access to the video cinema only for the purpose of the duties connected with law and order situation. 9. Rule 13(2) provides for refusal of a licence if the distance between the existing permanent, semi-permanent ..... X X X X Extracts X X X X X X X X Extracts X X X X
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