M-S. JASWANT TALKIES v. COMMERCIAL TAXES OFFICER, BHILWARA

Citation: [2007] 11 S.C.R. 1075

Court: Supreme Court of India

Bench: ARIJIT PASAYAT, D.K. JAIN

Case summary

M-S. JASWANT TALKIES v. COMMERCIAL TAXES OFFICER, BHILWARA.pdf

Judgment text

) MIS. JASWANT TALKIES V. COMMERCIAL TAXES OFFICER, BHILWARA NOVEMBER 12, 2007 [DR. ARIJIT PASAYAT AND D. K. JAIN,JJ. ] Rajasthan Entertainment and Advertisement Tax Act, 1957 (as amended)-s. I 0-Exhibitor ofcinematograph films admitting 878 viewers without valid ticket-Imposition ofpenalty ofRs. 5001- per viewer andin addition penalty ofRs. 5001--Correctness of-Held: Not correct-Underpre-amendeds. I0, contravention ofadmittingpersons without valid ticket hadno nexus with the number ofpersons-Though amendedprovision permits imposition ofpenaltyper person but it has no retrospective effect and is not clarificatory-lmposition ofpenalty ofRs. 4,39,0001- at the rate ofRs. 5001- per viewer unreasonable as against the total cost ofthe tickets Rs. 30061-. Appellant is exhibitor ofcinematograph films. Commercial Tax Inspectors inspected appellant's cinema hall and found 878 school children watching movie without tickets.

It issued show cause notice to the appellant for commission ofoffence under section 6(1) and (2) ofthe Rajasthan Entertainment and Advertisement Act, 1957 and for imposition of penalty of Rs 500/- in respect of each viewer. Appellant denied the imposition of penalty. Assessing Officer imposed penalty at the rate ofRs. 500/- per viewer and in addition >penalty ofRs. 500/- under section 10(3)(b) ofthe Act. Commissioner (Appeals) upheld the penalty under section 10(3)(a), however he had set aside the penalty under section 10(3)(b)(iii) ofthe Act. Aggrieved, appellant filed appeal. It was contended that the total cost of the tickets was Rs. 3006/- and penalty of Rs. 4,39,000/- at the rate of Rs. 500/- per viewer was not justified. Taxation Board held that the I' ..... penalty was not imposable at the rate of Rs. 500/- per viewer and the maximum penalty imposable was Rs. 500/-. Respondent filed revision petition. High Court upheld the penalty imposed by the ' Assessing Officer.

Hence, the present appeal. Allowing the appeal, the Court HELD: 1. 1. Section 10 of the Rajasthan Entertainment and Advertisement Tax Act, 1957 has been amended w. e. f. 31st July, 1998. The amended provision permits imposition of penalty per person. Section 10(3)(b) contemplates two types of penalties. The first relates to cases covered by clause (a) and sub-clauses (i) and (ii) ofClause (b). The second relates to sub-clause (iii) ofClause (b) of Sub-Section 3 of Section 10. The case at hand relates to clause (a) of sub-section (3) of Section 10. If the position was clear as contended by the State that the penalty is to be at the rate of Rs. 500/- per person, there was no reason for the amendment which specifically provided for imposition ofpenalty per person. [Para 7] [1082-A, B, CJ 1. 2. It is also irrational that as against a tax liability of Rs. 3006/-, penalty of Rs. 4,39,000/- was to be imposed.

Though in all cases quantum would not be a relevant factor, but on analyzing the scheme of the Statute it is clear that the stress is on the contravention. The contravention essentially is ofadmitting persons without valid ticket and at the relevant point oftime, had no nexus with the number ofpersons. To make the provision stringent the shift has been made to per person. But the amendment has no retrospective effect and is not clarificatory in nature. Therefore, the view of High Court is not correct. The conclusion of the Taxation Board that the penalty was not imposable at the rate ofRs. 500/- per viewer and the maximum penalty imposable was Rs. 500/-, was the correct view. [Paras 9 and 10) [1084-C, D, E] Maharana Talkies, Bhilwara v. State ofRajasthan and Ors. , (2004) 1 STT 237 (Raj. HC) and State ofRajasthan and Ors. v. RTT and Ors. , (2003) WLC (Raj), referred to. CIVIL APPELLATE JURISDICTION: Civil Appeal No. 5161 of From the final Judgment and Order dated 3. 3.

2006 ofthe High Court ofJudicature for Rajasthan at Jodhpur in S. B. Civil (Sales Tax) Revision No. 173 of 2000. Dr. Manish Singhvi and P. V. Yogeswaran for the Appellant. Aruneshwar Gupta, A. AG. , Naveen Kumar Singh, Mukul Sood and Shashwat Gupta for the Respondent. i ' The Judgment ofthe Court was delivered by . DR. ARIJIT PASAVAT, J. 1. Leave granted. 2. Challenge in this appeal is to the order passed by a learned Single Judge ofthe Rajasthan High Court at Jodhpur, allowing the revision filed by the respondent. The said revision petition was filed under Section 86 ofthe Rajasthan Sales Tax Act, 1994 (in short the 'Act'). 3. Factual position which is almost undisputed is as follows: The appellant is an exhibitor ofcinematograph films. On 3. 2. 1996 . >-cinema hall of the appellant was inspected by the Commercial 11ax Inspectors. At that time a movie "Alladdin" was being shown in the morning show. At the time ofinspection, 878 viewers were found watching the movie without tickets.

It was found that the daily collection register maintained by the appellant was not properly maintained. The inspectors put their signatures after drawing a line in the register so that no entry can be made thereafter. Alleging that the appellant admitted 878 viewers without tickets, a show cause notice was issued under Section 10 ofthe Rajasthan Entertainment and Advertisement Tax Act, 1957 (in short the 'Entertainment Act') prima facie being ofthe view that offence under >-- Sections 6(1) and 6(2) ofthe Entertainment Act has been committed. The appellant submitted its reply and stated that girl students ofa school had gone to watch the movie which was meant for children and in any event there was no scope for imposition of penalty ofRs. 500/- in respect of each viewer. The Commercial Tax Officer, Bhilwara was ofthe view that I penalty at the rate of Rs. 500/- per viewer was to be imposed and in .! '> --1, addition penalty of. Rs. 500/- under Section 10(3)(b) was also to be imposed.

The officer was ofthe view that mere fact that children ofMalnla Aashram were being shown the picture and the tickets were to be handed { over to the school authorities after counting the number ofchildren was not relevant. The inspection was done at 10. 00 a. m. when the school children had just entered the hall and, therefore, even before the show started the inspection was done. The order ofassessment was challenged before the Commissioner (Appeals). The said authority fo\lild that all the tickets were with the Manager ofthe Cinema, but since each viewer did not possess ticket there was contravention. Therefore, penalty under Section 10(3Xa) of the Entertainment. Act was upheld while setting aside the penalty imposed under Section 10(3XbXiii). The appellant preferred an appeal against the said order before the Rajasthan Taxation Board, Ajmer (in short the 'Taxation Board'). Before the Taxation Board, it was contended that the total cost of the tickets was Rs.

3006/- and penalty ofRs. 4,39,000/- at the rate ofRs. 500/- per viewer was unconscionable. The Taxation Board found that the penalty that was imposed was not imposable at the rate ofRs. 500/- per viewer and the maxin1um penalty imposable was Rs. 500/-. Revenue filed arevision petition as noted above and by the impugned order penalty imposed by the Assessing Officer was restored. 4. In support of the appeal, learned counsel for the appellant submitted that the High Court has relied on a decision ofits own Court in Maharana Talkies, Bhilwara v. State ofRajasthan and Ors. , (2004) 1 SIT 237 (Raj. HC) ignoring the view expressed in State ofRajasthan and Ors. v. RTT and Ors. , (2003) WLC (Raj. ) 306 which held that no penalty can be levied per person. The High Court also, it is pointed out, held in that case that the subsequent amendment was not clarificatory. 5. Learned counsel for the State on the other hand supported the order. 6.

The legislative history ofthe statutory provision needs to be noted. Section 10 ofthe Rajasthan Entertainment and Advertisement· Act, 1957 existing pre-1982 10. Offence and penalties. - (1) Notwithstanding anything contained in any law for the time being in force, a ticket for admission to an entertainment shall not be resold for profit by the holder thereof. (2) Whoever re-sells any ticket for admission in contravention to the provisions of sub-section (1) shall, on conviction before a Magistrate, be liable to pay fine which may extend to two hundred rupees.

(3)(a) The proprietor ofany entertainment or any person employed by him in any place ofentertainment, who admits any person to any place ofentertainment in contravention ofthe provisions ofsubsection (1) or sub-section (2) of Section 6, or (b) The proprietor ofan entertainment who - (i) fails to pay the tax due from him under this Act within the prescribed time, or (Ii) fraudulently evades the payment oftax due from him under this Act, (Iii) contravenes any ofthe provisions ofthis Act or the rules framed thereunder for which no other penalty has been provided under this Act. shall be liable to pay by. way ofpenalty, in addition to the a111ount oftax payable by him a sum not exceeding Rs. 500/-. Section 10 of the Rajasthan Entertainment and Advertisement Act, 1957 from 1982 10. Offence and penalties. - (1) Notwithstanding anything contained in any law for the time being in force, a ticket for admission to an entertainment shall not be resold for profit by the holder thereof.

(2) Whoever re-sells any ticket for admission in contravention to the provisions of sub-section (1) shall, on conviction before a Magistrate, be liable to pay fine which may extend to two hundred rupees. ~ -( (3)(a) The proprietor ofan entertainment or any person employed by him in any place ofentertainment, who admits any person to any place ofentertainment in contravention ofthe provisions ofsubsection (1) or sub-section (2) of Section 6, or (b) The proprietor ofan entertainment who - .. ,.. (i) fails to pay the tax due from him under this Act within the J prescribed time, or (ii) fraudulently evades the payment oftax due from him under this Act, or {iii) contravenes any ofthe provisions ofthis Act or the rules framed thereunder for which no other penalty has been provided under this Act. shall be liable to pay by way ofpenalty - ....

( (i) in respect ofcases referred to in clause (a) and sub-clauses I (i) and (iii) ofclause (b) in addition to the amount oftax payable l by him, a sum not exceeding Rs. 500/- and ~ (ii) in respect ofcases referred to in sub-clause (ii) ofclause (b) in addition to the amount oftax payable by him a sum not exceeding rupees five hundred or double the amount oftax evaded whichever is higher. (4) The prescribed authority not below the rank ofan Assistant Commercial Taxes Officer may, after affording a reasonable opportunity of being heard to the person affected, impose the A.. penalty mentioned in sub-section (3). (5) The person affected may, within one month of the communication ofthe order directing payment ofany sum by way r ofpenalty under sub-section (3) appeal to the prescribed authority. ' Amended Section 10 of the Rajasthan Entertainment and >- I Advertisement Act, 1957 with effect from 31. 7. 1998 10.

Offence andpenalties (1) Notwithstanding anything contained in any law for the time being in force a ticket for admission to an I entertain.. 11ent shall not be resold for profit by the holder thereof. (2) Whoever re-sells any ticket for admission in contravention to the provisions of sub-section (1) shall, on conviction before a Magistrate, be liable to pay fine which may extend to two hundred rupees.

-+ (3)(a) The proprietor ofan entertainment or any person employed by him in any place ofentertainment, who admits any person to any place ofentertainment in contravention ofthe provisions ofsubsection (1) or subsection (2) of Section 6, or (b) the proprietor ofan entertainment who - (i) fails to pay the tax due from him under this Act within the prescribed time, or (ii) fraudulently evades the payment oftax due from him under this > Act, or (iii) contravenes any ofthe provisions ofthis Act or the rules framed thereunder for which no other penalty has been provided under this Act shall be liable to pay by way ofpenalty- (i) in respect ofcases referred to in clause (a) and sub-clause (1) ofclause (b) regarding entertainment tax, in addition to the amount of tax payable by him, a sum not exceeding Rs.

100/- per person; (ii) in respect ofcases referred to in sub-clause (1) ofclause (b) regarding advertisement tax and in respect ofcases referred to in sub-clause (iii) ofclause (b) in addition to the amount of tax payable by him, a sum not exceeding Rs. 500 and I (iii) in respect ofcases referred to in sub-clause (ii) ofclause (b) in addition to the amount oftax payable by him a sum not .. _,,,_ exceeding Rupees five hundred or double the amount of tax evaded whichever is higher. (4) The prescribed authority not below the rank ofan Assistant Commercial Taxes Officer may, after affording a reasonable ~--· \ opportunity of being heard to the person affected, impose the penalty mentioned in sub-section (3). 7. It is to be noted that Section 10 of the Entertainment Act has been amended w. e. f. 31st July, 1998. The amended provision permits imposition ofpenalty per person. Section 10(3)(b) contemplates two types of penalties.

The first relates to cases covered by clause (a) and subclauses (i) and (iii) ofClause (b). The second relates to sub-clause (ii) of Clause (b) of Sub-Section 3 of Section 10. The case at hand relates to clause (a) of sub-section (3) of Section 10. Ifthe position was clear as contended by learned counsel for the State that the penalty is to be at the rate ofRs. 500/- per pe_rson, there was no reason for the amendment which·specifically provided for imposition ofpenalty per person. 8. The Statement ofObjects and Reasons for the amendment also throw considerable light on this position. The same reads as follows: B. Amendment in the Rajasthan Entertainment and Advertisements Tax Act, 1957 Certain amendments in the Rajasthan Entertainment and Advertisements Tax Act, 1957 have been considered necessary and were under consideration for quite some time past.

Owing to repeal ofthe Rajasthan Sales Tax Act, 1954 and coming into force ofnew Act of 1994, definition ofthe term 'Sales Tax Act', and due to proposed induction ofcertain new provisions in the 'Act of 1957', definitions ofthe terms 'appellate authority', Tax Board' and Tribunal' are proposed to be inserted vide clause 9 of the Bill. To provide for limitation for assessments, new section 5BB, to ensure effective recovery ofthe out-standing entertainment tax by providing special mode ofrecovery, substitution ofsection 9, to enable payment ofoutstanding dues in installments, new section 5BB, to enable the Commis_sioner to reduce or waive interest and penalty under the Act in case ofgenuine hardship, new section 9C I l are proposed to be inserted, substituted or inserted, as the case may be,. vide clauses 12, 13 or 14 ofthe Bill respectively. Moreover to make the penalty provision more practicable, section 10 (3) (b) is proposed to be substituted vide clause 15 ofthe Bill.

Besides above, to provide for statutory remedy offirst appeal, new section 13-A, to provide for appeal against order of appellate authority, new section 13-B, to provide for revision to tribunal, new section 13-C provide for powers ofrevision to Commissioner in case of an order passed by the prescribed authority being erroneous or prejudicial to the interest of State revenue, new section 13D, and to provide for rectification ofmistakes apparent from the record, new section 13-E; are proposed to be inserted vide clause 19 ofthe Bill. Some ofthe consequential or minor amendments are also proposed in various sections of the Act of 1957 vide clauses 10, 11, 17, 20 and 21 ofthe Bill. Extract ofthe Rajasthan Finance Bill, 1998 Relevant portion: 15. Amendment ofSection 10, Rajasthan Act No.

24of1956: In section 10 of the principal Act, - (a) for existing clause (b) ofsub-section (3), the following clause shall be substituted, namely: "(b) the proprietor ofany entertainment who - (i) fails to pay the tax due from him under this Act within the prescribed time, or (ii) fraudulently evades the payment oftax due from him under this Act, or (iii) contravenes any ofthe provisions ofthis Act or the rules framed thereunder, for which no other penalty has been provided under this Act, shall be liable to pay by way of penalty: _ (i) in respect ofcases referred to in clause (a) and sub-clause (i) ofclause (b) regarding entertainment tax, in addition to the [2007] 11 S. C. R. amount of tax payable by him, a sum not exceeding Rs. 100/- per person. (ii) in respect of cases referred to in sub clause (i) ofclause (b) regarding advertisement tax and in respect ofcases referred to in sub-clause (iii) ofc~use (b), in addition to the amount of tax payable by him, a sum not exceeding Rs.

500 and (iii) in respect ofcases referred to in sub clause (ii) ofclause (b) in addition to the amount oftax payable by him a sum not exceeding Rupees five hundred or double the amount oftax evaded whichever is higher. " (b) sub-section (5) shalf be deleted. 9. It is also irrational that as against a tax liability of Rs. 3006/-, penalty ofRs. 4,39,000/- was to be imposed. Though in all cases quantum would not be a relevant factor, but on analyzing the scheme ofthe Statute it is clear that the stress is on the contravention. The contravention -'.. essentially is ofadmitting persons without valid ticket and at the relevant point ohime, had no nexus with the number of persons. To make the provision stringent the shift has been made to per person. But the amendment has no retrospective effect and as noted above is not clari:ficatory. 10. As noted above, the amendment does not appear to be clarificatory in nature as contended by learned counsel for the respondent- State.

The view ofthe High Court therefore is not correct. The conclusion · ofthe Taxation Board was the correct view. 11. The appeal deserves to be allowed which we direct. There shall be no order as to costs. N. J. Appeal allowed.