Case: State Of Madhya Pradesh And Ors Vs. Home Decorators And Finance (Pvt.) Ltd. And Anr

This is an instance of how a resourceful mind can find ingenious method to circumvent the law. The respondent 1 in this case is the Home Decorators & Finance (P) Ltd. of which respondent 2 is the Managing Director. The appellant-government collects entertainment tax under the Entertainment Duty and Advertisement Tax Act, 1936 (hereinafter referred to as the Act) from the organisers of the entertainment programmes whenever the entries to such programmes are charged. The entertainment tax is recovered at the rate of 36 per cent of the fee charged. In order to evade this tax, the respondents evolved a stratagem and organised two performances called "Mahendar Kapoor Nite" in a local auditorium, namely, Manas Bhawan Hall Wright Town Jabalpur, on July 7 and 8, 1974. Although the Articles and the memorandum of Association of Respondent 1 did not permit them to do so, with a view both to bring the said programmes within the scope of the Articles of Association and to evade the payment of the tax, the respondents issued advertisements of the programmes in a local newspaper giving out that the programmes were being arranged to encourage savings. The scheme was that all those who wanted to attend the programme will become members of a group which they called "Nav Nirman Group" by paying an admission fee of Rs. 2 which was non-refundable and a membership subscription of Rs. 10 which was refundable after 10 years. The advertisements also stated that since there was an overwhelming demand, the performance would be staged on two dates, namely, July 7 and 8, 1974 and that the membership forms would be available at the site on the dates concerned and that the entry to the programme would be strictly on the production of the invitation card as well as the membership card. It appears that on July 7, 1974 and July 8, 1974, as many as 3189 and 4649 gullible persons respectively fell victims, and paid both the admission fee as well as the membership subscription. The respondents collected both the membership forms as well as the receipts for payment from the said persons at the time of giving them the entry to the programme. The result was that the persons concerned were left neither with the membership form nor with the receipts for the money they hadNeedless to say that although the promise was that such performances would be repeated for 10 years hence, and the members concerned would have an entry to the programmes on the basis of the membership cards, neither the membership cards were issued, nor the admission fee or the membership subscription were returned to the members, nor the performances were staged. In effect, the respondents made good with the money they had collected ostensibly for promoting savings. Thus both the members of the public were defrauded of their moneys as well the State Government of their taxThe District Excise Officer who was also the Entertainment Tax Collector under the said Act, sensing the ploy had, however, taken precaution to check, on both the said dates, the receipts and the amounts received by the respondents and had dexterously prepared a panchanama at the spot. He determined the amount of tax recoverable on the said collections, and issued to the respondents two separate notices on July 9, 1974 demanding the tax along with the duty surcharge thereon for the collections made on July 7 and 8, 1974 respectively. The total amount so demanded by both the notice was Rs. 35, 429.The respondents challenged the notices by a writ petition under Article 226 of the Constitution before the High Court. The High Court by the impugned decision held that the assessment of the tax made by the officer was arbitrary because, firstly, there was no allegation that the invitation cards which were issued were sold, and secondly, the subscription fee of Rs. 10 recovered from each member was not divided by 10 which it was necessary to do, for the entertainment tax could be collected only on Re 1 per year for the next 10 years. The High Court, therefore, allowed the writ petition and quashed the notices. It also appears that the respondents had paid Rs. 5000 in part payment of the amount demanded under the notices. The High Court, therefore, also directed the appellants to refund the said amount as being "exacted" from the respondents

Reasoning:
5. We are afraid, the High Court completely missed the crucial point and, therefore, misdirected itself. The admitted facts as stated above were that the respondents had collected in all Rs. 12 from each of members out of which Rs. 2 was non-refundable being the so called admission fee and Rs. 10 were refundable only after 10 years. The "members" were not issued the membership cards nor were they left either with any trace of their membership forms or receipts for the payments they had made. Instead they were handed over entrance slips during interval which were collected at the door. The result was that even if the "members" were to claim an entry for programmes, if any in future, they would not have been able to do so. As it happened further, in fact, no programmes were ever staged at any time thereafter. The so called "Nav Nirman Group" did not have any legalwill be apparent from the scheme that it was not meant for promoting music. It was a pure business proposition meant to collect money and earn profits, and it was to be used as a device to evade the entertainment duty. The receipts and/or the invitation cards were nothing but tickets for the show and only for one show, and were collected at the door. In the circumstances, whatever be the description given to the receipts/cards they were liable to the entertainment duty. The impugned notices were, therefore, properly issued by the appellants. We are, therefore, unable to accept the reasoning of the High Court that Rs. 10 collected by the respondents were the membership subscription or that the duty could not have been collected at a time on Rs. 10