Paragraph numbers below are the court’s original numbering, recovered from the source text.
7. The High Court held that entertainment duty to be levied for the amusement park is 50% of 15% i.e. 7.5% under Section 3(2) of the Act, therefore, in terms of Section 3(5)(a) and (b) of the Act, the entertainment duty is 50% of 7.5% i.e. 3.75%. The High Court held that such interpretation is on the basis of a cumulative reading of the provisions of the Act.
8. The argument of the learned counsel for the appellants is that Section 3(5)(a) of the Act starts with a non-obstante clause contemplating levy of an entertainment duty in respect of the amusement park, in the manner mentioned therein. Section 3(1) of the Act contemplates levy of entertainment duty in respect of amusement park to be 15% of the payment made for admission to the same. In terms of the non-obstante clause with which Section 3(5)(a) begins, the levy of duty shall be in terms of that sub -section. There is no difficulty in respect of sub-clause (i) of Section 3(5)(a) of the Act, which is to the effect that no duty shall be payable. Sub-clause (ii) of Section 3(5)(a) of the Act contemplates that for the subsequent two years, duty @50% would be leviable under clause (b) of sub-section (1) or, as the case may be, sub-section (2) of section 3 of the Act.
9. The learned counsel for the writ petitioners argued that upon a collective reading of the definition of “amusement park” (which means a place where various types of entertainment are provided on a permanent basis on payment for admission) and Section 3(2) which provides that upon payment of admission to entertainment by means of a lump sum amount for the right to admission to a series of entertainments, the entertainment duty would be charged @ 50% of the rates mentioned in Section 3(1)(b). Thus, in the case where the amusement park charges a lump sum amount as a right to admission for all the rides and games available in the said amusement park, then, Section 3(2) will be applicable and the entertainment duty payable by the amusement park would be half of what is provided in Section 3(1)(b) being 15% i.e. 7.5%.
10. It is also argued that the proviso to Section 3(1)(b) ends with the phrase “including payments made for admissions for games and rides, whether charged separately or not”. Thus, 15% entertainment tax was payable by the amusement park where it charged an amount for mere admission and the charges for the games and rides being separate. However, where the amusement park charges a lump sum amount which includes the charges for games and rides, the entertainment tax payable would be 7.5 % in terms of Section 3(2).
11. It is argued that Section 3(5)(a) of the Act further gives a tax holiday on the duty payable under Section 3(1)(a) or Section 3(2) of the THE STATE OF MAHARASHTRA & ORS. v. PAN INDIA PARYATAN LIMITED & ANR. [HEMANT GUPTA, J.] Act, therefore, for the fourth and fifth year of the operation of the amusement park, the duty would be 3.75%.
12. We do not find any merit in the argument raised by learned counsel for the writ petitioners. In respect of first three years falling in Section 3(5)(a) of the Act, there is no dispute, as no duty is payable. The controversy revolves around the levy of entertainment duty for the fourth and fifth year and subsequently from the sixth year onwards. Sub-clause (ii) of Section 3(5)(a) contemplates that duty @50% under clause (b) of sub-section (1) or, as the case may be, sub-section (2) of Section 3 would be payable. In respect of the first part of sub-clause (ii) of Section 3(5)(a) of the Act, there can possibly be no dispute as the entertainment duty is 50% of 15% leviable under Section 3(1)(b) of the Act.
13. It is sub-section 3(2) of the Act which is required to be interpreted. The said provision is in respect of charging of duty at 50% of the duty fixed in Section 3(1)(b) of the Act to the specific category of visitors to the amusement parks such as payment in:- a) “lump sum as a subscription or contribution to any society”, or b) “for a season ticket” or c) “for the right of admission to a series of entertainments” or d) “any entertainment during a certain period of time”
14. We find that the writ petitioners do not fall in any of the four categories as mentioned above. Category (a) is subscription or contribution in lump sum to any society. The expression Society is not defined in the Act. Therefore, Society would mean a Society registered under the Societies Registration Act, 1860 or other similar statutes. The writ petitioners would not fall in such category as the payment is not to any society. It is not the case of writ petitioners that they have issued a season’s ticket to the visitors. A Season ticket would mean a regular visitor visiting the amusement park regularly at a specific time.
15. Category (d), that entry would be on charging 50% of the duty fixed for any entertainment during a certain period of time, depends upon the decision of the State Government and/or Municipal Corporation to grant that relaxation to enable the writ petitioners or such other amusement park owners to charge duty at a lesser rate.
16. The prime argument turns around in respect of category (c) as delineated above i.e. for admission to a series of entertainment. The argument of the learned counsel for the writ petitioners is that when a ticket is issued by them, it is a ticket for admission to series of entertainment. We do not find any merit in the said argument. The amusement park is defined under Section 2(a-1) of the Act to mean a place wherein various types of amusements including games or rides or both are provided fairly, on a permanent basis, on payment for admission. The payment for admission is defined under Section 2(b) of the Act as the payment made by a person having admitted to one part of a place of entertainment and subsequently admitted to another part. Section 2(d) of the Act deals with admission to an entertainment which includes admission to any place in which the entertainment is held.
17. The argument that when a lumpsum amount is paid as a right of admission for all rides and games, then it becomes admission to series of entertainment, is not tenable. The writ petitioners issue one ticket including one or more rides or games situated in one compound. It is not the case of the writ petitioners that for every ride or game, it is charging separately. The admission to entertainment in terms of Section 2(d) of the Act includes all rides and games which are provided by the service provider. The series of entertainment as contemplated by Section 3(2) of the Act does not mean that on a single day ticket for one entry, it can be treated to be a series of entertainments. The series of entertainments can be where the facility for a game or ride is provided on multiple days and a combined ticket is issued for events for each day. It will only then be said to be series of entertainment.
18. Once an admission ticket is granted, it is not in terms of Section 3(2) of the Act but only in terms of Section 3(1)(b) of the Act. Section 3(2) of the Act has no applicability for a visitor to an amusement park who does not fall in any of the four categories mentioned in Section 3(2) of the Act. Since, the activities undertaken by the writ petitioners are not failing part of Section 3(2) of the Act, therefore, they are not entitled to rebate of 50% provided to specified category of persons in Section 3(2) of the Act.
19. Section 3(5)(a) of the Act has an overriding effect over Section 3(1)(b) and Section 3(2) of the Act. In respect of the first three years from the date of commencement of the amusement park, there is no issue as no entertainment duty is payable. But, in respect of the subsequent THE STATE OF MAHARASHTRA & ORS. v. PAN INDIA PARYATAN LIMITED & ANR. [HEMANT GUPTA, J.] two years, the rate of duty leviable is under clause (b) of sub-section (1) or, as the case may be, under sub-section (2) of Section 3. Section 3(1)(b) of the Act is applicable to all amusement parks whereas Section 3(2) of the Act has a limited applicability only in respect of the specified categories therein. All amusement parks for all entertainment are not entitled to concessional duty in terms of Section 3(2) of the Act. Therefore, the writ petitioners cannot claim benefit under Section 3(2) of the Act. The argument is preposterous as the writ petitioners are firstly claiming the benefit under Section 3(2) of the Act and then under Section 3(5)(a) of the Act. The amusement parks would be entitled to only one benefit either under Section 3(2) or under Section 3(5)(a) of the Act. Since Section 3(2) is not applicable to all amusement parks for all other activities, therefore, the entertainment duty in terms of Section 3(5)(a) of the Act alone would be leviable. The duty under Section 3(2) of the Act would be leviable only in respect of specified categories mentioned therein.
20. Thus, we are unable to agree with the judgment of the High Court that in terms of Section 3(5)(a) of the Act, the entertainment duty is 50% of the duty payable under Section 3(2) of the Act. Consequently, the order passed by the High Court is set aside. The appeals are allowed. Nidhi Jain Appeals allowed.