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Dgm in the HIGH COURT of JUDICATURE at BOMBAY

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Dgm in the HIGH COURT of JUDICATURE at BOMBAY 1 wp-2338-96.sxw dgm IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO. 2338 OF 1996 Mumbai Grahak Panchayat .... Petitioner vs 1 The State of Maharashtra 2 Mr. Pramod Navalkar 3 The Collector, Mumbai Suburban District 4 Wizcraft 5 Shiv Udyog Sena .... Respondents Mr. Uday Warunjikar i/by Mr. S.V. Deshpande for the petitioner. Mr. Ravi Kadam, Advocate General with Ms.Madhubala Kajale, AGP for respondents 1 to 3. Mr. F. Devitre, Sr. Advocate with Mr. Rohan Cama i/by M/s.Sanjay Udeshi & Co. for respondent no.4. CORAM: D.K. DESHMUKH & ANOOP V. MOHTA, JJ. DATE : April 13, 2011 P.C.: By this Petition, which is filed in public interest, the Petitioner challenges the Order dated 19 October 1996 passed by the Government of Maharashtra granting exemption from levying of ::: Downloaded on - 09/01/2021 12:48:58 ::: 2 wp-2338-96.sxw entertainment duty and surcharge to the programme that was to be held by Respondent no.4-Wizcraft. The facts which are relevant and material for deciding this Petition are that the Petitioner-Mumbai Grahak Panchayat is a voluntary consumer organisation registered under the Societies Act,. It is stated that it is engaged in promoting and protecting the consumer interests in India. According to the Petitioner, the exemption has been granted in favour of Respondent no.4 in an arbitrary manner and in violation of the statutory provisions. It results in causing huge financial loss to the Government and, therefore, the present Petition has been filed challenging the order granting exemption in public interest. 2 It appears from the record that on 27 September 1996 a letter was addressed to Shri Pramod Navalkar, who has been described in the letter as Minister of Cultural Affairs of the Government of Maharashtra, stating therein that Respondent no.4 is an Entertainment Agency and is India's premier Event Management and Marketing Company. It was stated ªWe have been appointed and confirmed as the Promoters for the King of Pop Michael Jackson History Tour 1996-97 in India.º. It was further stated that two promotional shows of the world famous star and The King of Pop ::: Downloaded on - 09/01/2021 12:48:58 ::: 3 wp-2338-96.sxw Michael Jackson are being organised on 30 October and 1st November 1996. It was further stated ªMichael Jackson has agreed to perform these shows in aid and benefit of the charity organisation ± Shiv Udyog Sena, a registered institution for a charitable purpose. It was stated that the registration certificate of Shiv Udyog Sena and Income Tax exemption granted under Section 80-G are attached to the application. It was further stated that ªthe net income generated from the show would be used by our Charity for providing employment opportunity for the youthº. It was stated that No Objection Certificate from the Ministry of Finance, Department of Economic Affairs, Government of India for organising and staging of concerts of the above mentioned artist has already been obtained. A copy of the certificate to which a reference is made issued by the Department of Economic Affairs is annexed to the Petition which is dated 26 July 1996. A perusal of that letter shows that it was represented to the Government that Respondent no.4 will retain only 15% of the net income and remainder 85% will be donated to the reputed/recognised charities. On 19 October 1996 on the basis of the application dated 27 September 1996 an order was made. That order makes a reference to two Government Resolutions, (i) dated 23 October, 1972 and (ii) 30 July 1977 and it further states that ªAs stated by you in your letter ::: Downloaded on - 09/01/2021 12:48:58 ::: 4 wp-2338-96.sxw and in view of the above as the performance of the programme is of a classical nature and which is being organised to raise funds for charitable cause on 1st November, 1996 at Shahaji Raje Bhosale Krida Sankul (Andheri Sports Complex), I am to state that this programme in aid of charity towards ªShiv Udyog Senaº is exempted from levy of Entertainment Tax Duty and Surcharge.º The submission of the Petitioner is that the order of exemption has been granted on the basis of the application dated 27 September 1996 which contains several incorrect and misleading statements. It is submitted that the letter dated 27 September 1996 states that Shiv Udyog Sena has been registered for a charitable purpose. However, on the date of that application, it was admittedly not so registered. It was actually registered on 24 October 1996 though it was already registered under the Societies Registration Act. It was further submitted that no inquiry was made by the Government into the charitable purpose that is to be served by Shiv Udyog Sena before granting the application. It is the contention of the Petitioner that the power of the Government to grant exemption under Section 6 of the Bombay Entertainment Duty Act has been used by the Government which at that time was controlled by political party Shiv Sena for the benefit of its own organisation i.e. Shiv Udyog Sena. ::: Downloaded on - 09/01/2021 12:48:58 ::: 5 wp-2338-96.sxw 3 The case of the State Government, on the other hand, is that the Government Resolution dated 22 November 1973 grants exemption from payment of entertainment duty to all performances of music (classical, light and instrumental) and classical and folk dancing from Western and Eastern countries. It is further submitted that by Government Resolution dated 30 July 1977, exemption from payment of surcharge has also been granted to such programmes. It was also submitted that by Government Resolution dated 4 January 1974, it has been clarified that the exemption from payment of entertainment duty also extends to performances of music (classical light and instrumental) and classical and folk dancing from Western and Eastern Countries would be taxed if these include even one single small item of Ball Dancing and/or Cabarat Dancing. It was clarified that classical music also includes beat music. It was contended that therefore that the programme was entitled for exemption from payment of entertainment duty and surcharge under the general orders of the Government itself and, therefore, it was not necessary to consider the application for grant of exemption because a part of the proceeds were to go to Shiv Udyog Sena. ::: Downloaded on - 09/01/2021 12:48:58 ::: 6 wp-2338-96.sxw 4 We have heard the learned counsel appearing for Respondent no.4 also. According to Respondent no.4, under the Government Resolution, there is a general exemption granted to all musical programmes. It was further submitted that by two agreements dated 15 October 1996 and 16 October 1996 entered into by Respondent no. 4 with Respondent no.5, 85% of the profit of the programmes are to be donated to Shiv Udyog Sena. It was pointed out that even if the aspect that Shiv Udyog Sena is a charitable organisation and because substantial portion of the profits of the performance of the programmes would go to that organisation is ignored, then also because of the Government Resolution granting general exemption, Respondent no.4 is entitled to grant of exemption from payment of entertainment duty as a matter of right. It appears that there was a Writ Petition filed before the Nagpur Bench of this Court challenging the exemption granted from payment of entertainment duty to the same programme. Pursuant to the order of this Court and the Supreme Court in that Petition, an amount of Rs.3,33,76,000/- has been deposited in this Court and that amount has been directed to be invested in fixed deposit. That amount has been directed to be deposited in this Court obviously to secure the amount of entertainment duty which the State Government will be entitled to ::: Downloaded on - 09/01/2021 12:48:58 ::: 7 wp-2338-96.sxw receive in case it is held that Respondent n.4 is not entitled for grant of exemption from payment of entertainment duty. 5 Now the order impugned in this Petition admittedly has been made by the State Government under the provisions of the Bombay Entertainment Duty Act, 1923. Section 6 thereof which is relevant for our purpose reads as under : ª6 Entertainments for charitable or educational purposes exempted; exemption by State Government :- (1) Entertainments duty shall not be levied on payments for the admission to any entertainment where, in the case of any area for which a Commissioner of Police has been appointed, the Commissioner of Police, or elsewhere, the District Magistrate, is satisfied that - (a) the whole of the takings thereof are devoted to philanthropic or charitable purposes without any charge on the takings for any expenses of the entertainment; or (b) the entertainment is of a wholly educational character; or (c) the entertainment is provided partly for educational or partly for scientific purposes by a society, institution or committee not conducted or established for profit (2) Where the Commissioner of Police or the District Magistrate, as the case may be, is satisfied that the whole of the net proceeds of an entertainment are devoted to philanthropic or charitable purposes, and that the whole of the expenses of the entertainment do not exceed twenty per cent of the receipts, the amount of the entertainment ::: Downloaded on - 09/01/2021 12:48:58 ::: 8 wp-2338-96.sxw duty paid in respect of the entertainment shall be refunded to the proprietor. (3) The State Government may, by general or special order, exempt any entertainment or class of entertainments from liability to entertainments duty subject to such terms and conditions, if any, as may be specified in the order.
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