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TMI Blog2022 (12) TMI 127X X X X Extracts X X X X X X X X Extracts X X X X ..... rmal or a better view or hearing or enjoyment of the entertainment which without the aid of such instrument or contrivance such person would not get. Thus to include any amount under Section 2(l)(iii), it is essential that there should be a use of 'instrument' or 'contrivance' which enables the person to use the benefits and without which such entertainment or enjoyment is not possible - there is no material to state that such costume enhances the enjoyment of the persons to enjoy the entertainment of water park and further there is no material on the record to state that without such costume being provided, the person entering into the water park would not in a position to enjoy the entertainment. In the present case, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2 of The Uttar Pradesh Entertainment and Betting Tax Act, 1979 (hereinafter referred to as The 1979 Act ) along with penalty of Rs.20,000/-. The petitioner also challenges the order dated 21.01.2016 whereby the statutory appeal preferred by him was rejected as well as the order dated 30.03.2017 whereby the application for recall of the appellate order was also rejected. 3. The facts in brief are that the petitioner is a Company incorporated under The Companies Act, 1956 and is a Proprietor of a water park situate at Faizabad Road, Lucknow and runs a water park in the said premises in accordance with the permission obtained from the requisite authorities. 4. The contention of the Counsel for the petitioner is that the entertainment ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d exercise of powers under Section 12 of the 1979 Act. The petitioner preferred an appeal against the said order and took specific ground with regard to the non-providing of the survey report, however, the appeal was dismissed without granting opportunity of hearing and ex-parte in the absence of the petitioner. The petitioner preferred an order recall application which too was dismissed. The said three orders are under challenge before this Court. 6. The contention of the Counsel for the petitioner is that very foundation for charging entertainment tax on the 'costume' as alleged against the petitioner is wholly illegal, inasmuch as, in terms of the mandate of Section 2(l)(iii) of the 1979 Act, the costume would not come within ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the petitioner further argues that even otherwise in terms of the mandate of Section 12 of the 1979 Act, it is incumbent that an opportunity of hearing be granted prior to passing of the order which has not been done. He further argues that the entire assessment has been done based upon one survey which is neither a proper exercise of power nor does it give any indication to come to the conclusion with regard to the quantum of tax due. He places reliance on the specific averments regarding not providing an opportunity of hearing made in the writ petition which have not been denied in the counter affidavit and thus it is argued that the writ petition is liable to be allowed. 8. Learned Standing Counsel, on the other hand, argues that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entertainment which without the aid of such instrument or contrivance such person would not get. Thus to include any amount under Section 2(l)(iii), it is essential that there should be a use of 'instrument' or 'contrivance' which enables the person to use the benefits and without which such entertainment or enjoyment is not possible. A costume used in the water park, as stated by the Counsel for the petitioner, is provided to the persons who wants to take it on rent. There is no material on record to suggest that the costumes would be an 'instrument' or 'contrivance'. Further there is no material to state that such costume enhances the enjoyment of the persons to enjoy the entertainment of water park and fu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h something is done or effected; anything that serves or contributes to the accomplishment of a purpose or end; a means . 15. In the present case, the costume used in the water park would neither fall within the definition of words 'instrument' or 'contrivance', thus I am inclined to accept the submission of the Counsel for the petitioner that the renting on 'costumes' cannot be included in the term 'payment for admission' as defined under Section 2(l), thus on that score alone, the assessment order is beyond the authority of law and is violative of Article 265 of the Constitution of India. 16. It is well settled that the tax can be levied only when specially provided for and not by intendment. If the l ..... X X X X Extracts X X X X X X X X Extracts X X X X
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