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TMI Blog2023 (12) TMI 365X X X X Extracts X X X X X X X X Extracts X X X X ..... ivities. Therefore, whether water sports activity is carried on by amusement park or by non amusement park, both would be liable to pay the entertainment duty - It is also important to note that third proviso to Section 3(1) expressly provides that water sports activity whether situated within or outside the amusement park would be liable for entertainment duty. Therefore, the scheme of the Act clearly negatives the contention raised by the petitioners by relying on legislative debate that only water activities by amusement park are liable for duty. It is important to note that the petitioners have admitted that they are covered by the Entertainment Duty Act. After having admitted the same, the petitioners cannot turnaround and contend at the fag end of the proceedings that since the intention of the legislature is to cover water activities in amusement park and since their activities are not in amusement park, they are not liable for duty. Section 3(1) of the Act which is charging section imposes levy, not only on entertainment as defined by Section 2(a) of the Act but also covers various other activities including water sports activity and admittedly, the activities of the pet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nserted by the Bombay Entertainment Duty (Amending) Act, 1998, are ultra vires the Constitution of India and bad in law and liable to be struck down. AA That the Hon ble Court be pleased to issue a writ of mandamus, or a writ in the nature of mandamus, or any other appropriate writ, direction, or order under Article 226 of the Constitution of India directing the Respondent No. 1 to refund Duty Amount i.e. Rs. 1,52,45,923/- and any applicable interest as per the discretion of the Hon ble Court. D-1 In the alternative if it being held that the entertainment duty is payable for the water sports activity as undertaken by the petitioners than this Honourable Court be pleased to issue a writ of mandamus or a writ in the nature of mandamus, or such any other appropriate writ, direction or order under Article 226 of the Constitution of India directing the respondents to submit list of water sports activity operators who have been granted permission by Maharashtra Maritime Board to undertake water sports activity and liable to pay entertainment duty from 1st May 1998 to undertake water sports activity and not taxed under the provisions of the Bombay Entertainment Duty Act, 1923 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le a statutory appeal under Section 10-A of the Entertainment Duty Act. Pursuant thereto, the petitioners filed an Appeal on 31st July 2003. The Appellate Authority rejected the said appeal and confirmed the demand raised. The said appeal order was challenged in revision and on 10th June 2005, the Revisional Authority passed an order upholding the contention of the petitioners that they were entitled to exemption under Section 3 (5A) of the Entertainment Duty Act for a period of 3 years and further 50% remission for a period of 2 years thereafter. The consequence being, after the period of 3 years of exemption, the petitioners have deposited the entertainment duty, of which the petitioners seeks refund in the present petition. Being aggrieved by the said order passed by the Revisional Authority, the petitioners have filed the present petition seeking refund of entertainment duty deposited with the respondents for the period post expiry of exemption period of 3 years. We are informed by the petitioners that at present they have closed all water activities at Chowpatty, Mumbai. 4. Submissions on behalf of the Petitioners :- The learned senior counsel for the petitioners has ad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aphs 7 to 9 of its rejoinder dated 3rd February 2016 to contend that the respondents are not taking any decision to enforce the Entertainment Duty Act against the boat operators at Gateway of India. The petitioners also stated in its rejoinder that none of the persons to whom licenses have been issued by the Maharashtra Maritime Board are registered under the provisions of the Entertainment Duty Act. The petitioners also relied upon the reply of the respondents. The sum and substance of the submission of the petitioners is that since the persons engaged in similar activities are not being subjected to the entertainment duty, the petitioners are being discriminated by making to pay entertainment duty and therefore, the duty deposited by the petitioners should be refunded. 7. The petitioners further relied upon the Legislative Assembly debates on a bill as presented before the Legislative Assembly to amend the Bombay Entertainment Act, 1923. In this context, our attention was drawn to the speech of an opposition member and reply of the Minister. The contention of the petitioners is that based on such debate, on the floor of the assembly, the intention of the legislature was to lev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4 SCC 202. (ii) Commissioner of Excise Entertainment Vs. M/s.Polo Amusement Park Ltd. 2016 SCC OnLine Del 2360. 10. Rejoinder submissions on behalf of the Petitioners : The petitioners contended that payment of Rs. 1.52 crores is made after the petition was admitted and under protest. It is the contention of the petitioners that since the said deposit is made without prejudice and subject to the outcome of the present petition, the contention of the respondents that the petitioners cannot claim negative equality is not correct. It was further contended that since the intent as per the legislative debate is to tax amusement park in which water activities are provided, the principle of negative equality contended by the respondents State would not be applicable. The petitioners also furnished a statement which is in Form B to contend that the petitioners have not collected the Entertainment Duty from the user of its facilities and therefore, the principle of unjust enrichment would not be applicable. ANALYSIS AND CONCLUSION:- 11. The question which arises in the present petition is as to whether the Petitioner on the issues as urged, can justify in in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l be 15 per cent. of the payment made for admission to the amusement park, including payment made for admission for games and rides, whether charges separately or not. Provided also that, the entertainment duty in respect of water sports activity, by whatever name called, whether situated within or outside the amusement park, shall be 15 per cent. of the payment made for admission to the water sports activity including payment made for admission for water games and sports, whether charged separately or not. (emphasis supplied) (e) Section 3 (5A) (a) provides that notwithstanding anything contained in sub-section (2) or in any other provisions of this Act but, subject to the provisions of clause (b), on and with effect from the date of coming into force of the Bombay Entertainments Duty (Amendment) Act, 1998, there shall be levied and paid by the proprietor to the State Government, the entertainment duty in respect of any water sports activity as follows, namely : (i) for the first three years from the date of commencement of the water sports activity, no duty ; (ii) for the subsequent, two years, at the rate of fifty per cent. of the rate of duty levi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... adav V/s. State of U.P. Others (2011) 6 SCC 570., Public Service Commission, Uttaranchal V/s. Mamta Bisht Ors. (2010) 12 SCC 204., Tridip Kumar Dangal Ors. V/s. State of W.B. Ors. (2009) 1 SCC 768. The counsel for the Petitioner agreed to this position in law. Further no materials were brought on record to show that such operators were having sports licences, similar to that of the petitioners, much less to implead them as parties. 15. The Petitioner s contention is to the effect that on one hand, the operators at the Gateway of India were not being levied with the entertainment duty, whereas the petitioners were subjected to levy of entertainment duty under the Act and for such reason, the petitioner needs to be put at par with the operators at the Gateway of India. 16. Such contention of the petitioners in legal terms can be considered as a plea of the petitioners to assert a negative equality, for the reason that the petitioner is questioning the action of the State Government in the levy of the entertainment duty only qua the petitioners, and the same being not levied on the operators at the Gateway of India. Conversely, the plea is that the action of the State ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al order extending similar benefits to others. It was hence observed that before a claim based on equality clause is upheld it must be established by the petitioner that its claim being just and legal, has been denied to him, while it was extended to others and in such process, there has been discrimination. The facts of the present case clearly demonstrate that the petitioners case utterly fails when tested on such well established parameters. Thus, the acceptance of the petitioner s contention that the petitioner should be given a relief because the State has not recovered tax from similar activities carried on by others would amount to calling upon this Court to give relief on the basis of negative equality. It is hence trite law that equality cannot be claimed on any illegality. It cannot be enforced by a Court in a negative manner. 18. We can also test the submissions of the petitioners by way of an illustration. Assuming that Mr. A is regularly paying income tax on its business activity. Mr. B is carrying out the same business activity and earning income but is not paying any tax nor does the Revenue Authority takes any action against Mr. B for recovery of tax. In such sc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted by aid of Article 14. The apart, Article 14 has no application or justification to legitimise an illegal and illegitimate action. Article 14 proceeds on the premise that a citizen has legal and valid right enforceable at law and persons having similar fight and persons similarly circumstanced, cannot be denied of the benefit thereof. Such person cannot be discriminated to. deny the same benefit. The rational relationship and legal back up are the foundations to invoke the doctrine of equality in case of persons similarly situated. If some person derived benefit by illegality and had escaped from the clutches of law, similar persons cannot plead nor court can countenance that benefit had from infraction of law and must be allowed to be retained. Can one illegality be compounded by permitting similar illegal or illegitimate or ultra vires acts? Answer is obviously no. 28. A host of other decisions in that context have laid the same principle. It is not necessary to burden the judgment any further. Suffice to hold that the illegal allotment founded upon ultra vires and illegal policy of allotment made to some other persons wrongly, would not form a legal premise to ens ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Dass Sud Sons (supra). There is no quarrel that if two persons are equally placed then provisions of Article 14 can be invoked. Thus this decision as relied upon by the petitioners does not support the case of the petitioners. On the contrary, the decision in case of Snowden v. Hughes which is referred to in the decision in case of Bhagwan Dass Sud Sons (supra) goes contrary to the petitioners case wherein the Court had observed that the Constitution does not assure uniformity of decisions or immunity from merely erroneous action, whether by the Courts or the executive agencies of a State. 24. Now, we consider the case of the petitioner on the under protest payment. It is contended by the petitioners that since the payment was made under protest, the principle of negative equality would not be applicable. We may observe that the present petition is filed on 22nd August 2005. This Court in its order dated 28th July 2022 recorded the statement of the petitioner that pursuant to an interim order passed on 10th June 2005 the petitioners has deposited a sum of Rs. 1,52,45,923/-. We fail to understand as to how this sum was deposited on 10th June 2005, the petitioner has und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... taxed based on the legislative debates for construing the levy. The Petitioner has relied upon the legislative debates, when the bill No. 29 of 1998 was introduced in the Assembly to amend the Bombay Entertainment Duty Act, to contend that it is the water activities in the amusement park, which were intended to be covered for the purpose of levy of entertainment duty and not the activities conducted by the petitioners. 27. In considering such plea, the first and foremost approach of the Court would be to plainly look at the legal provisions as contained in the provisions of the statute as they stand, and if there is any need for an external aid, so as to attribute any meaning to the legislative provisions then recourse can be had to such external material which in a given case may include legislative debates. 28. The Act itself distinguishes between amusement park and the water activities. There are separate provisions dealing with the amusement park and the water sports activity. If the legislative intent was to cover only water sports activity by amusement park then the Acts would not have made a distinction between the amusement park and water sports activity. The levy is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f entertainment duty would be leviable. The petitioners having made an application and having taken benefit of no duty for the first three years now cannot turnaround, on expiry of three years when they are liable to pay duty at the rate of 50% and full amount thereafter, that their activities are not covered by the Bombay Entertainment Duty Act and therefore, the petitioners rightly began the arguments by stating that they are covered by the provisions of the Bombay Entertainment Duty Act. The petitioners are now estopped from contending otherwise. The claim of refund by the Petitioner is made of the duty which they themselves and rightly so paid. On these facts, in our view, the petitioners now cannot contend that their activities are not covered by the Entertainment Duty Act. 30. We also note the legal position on this aspect. The Supreme Court in case of Supreme Court in case of State of Travancore-Cochin and Ors. Vs. Bombay Company Limited, Alleppey AIR 1952 SC 366 held that speeches made by the Members of Constituent Assembly in the course of debates on the draft constitution is unwarranted. The Supreme Court observed in the said judgment that this form of extrinsi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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