Case: Western India Theatres Ltd Vs. Cantonment Board, Poona, Cantonment

2. The facts leading up to this appeal may shortly be stated. The appellant is a Public limited company registered under the Indian Companies Act, 1913. It is a lessee of two cinema Houses known respectively as "West End" and "Capitol" situated within the limits of Poona cantonment area. It exhibits in the said two Houses cinematography films both foreign and Indian.3. On March 20, 1947,a notice was issued by the respondent whereby, in exercise of the powers conferred on it by S. 60 of the Cantonments Act, 1924 (II of 1924), the respondent proposed to make, with the previous sanction of the Central Government certain amendments in the notification of the Government of Bombay in the General Department No. 4160 dated June 17, 1918, and intimated that the draft amendments would be considered by the respondent on or after April 21, 1947, and invited objection in writing within 30 days from the publication of that notice. One of the items of amendments was as follows:"(ii) V-Tax on Entertainments1. Cinemas, Talkies or dramas Rs. 5-0-0 | per Rs. 10-0-0 | show2. Circus Rs. 2-0-0 per show3. Horse Races Rs. 100-0-0 per day of race meetings4. Amusement park Rs. 20-0-0 per day.provided as followsThe said tax shall be levied at the rate of as.10-0-0 per show in the case of the West End and Capitol Talkies and at the rate of Rs. 5-0-0 per show in other cases.It appears that the Cinematograph Exhibitors Association of India submitted certain objections to the proposals. The Cantonment Executive Officer, Poona, by his letter dated July 8, 1947, informed the Secretary of the Cinematograph Exhibitors Association of India that the latters letter had been submitted to the Government of India in original along with the respondents proposals and that the imposition of the entertainment tax on cinemas had been approved by the Government of India, Defence Department notification No. 1463 dated May 7, 1947. On June 17, 1948, a notification was issued by the Government of Bombay to the effect that in supersession of the notifications of Government noted on the margin and of all other notifications on the same subject, the Governor-in-Council, with the previous sanction of the Governor General-in-Council, was pleased to impose certain taxes in the Cantonment of Poona with effect from July 15, 1948. One of the taxes thus imposed was as follows:"V Tax on entertainments.1. Cinemas, Talkies or dramas Rs. 10-0-0in the case of the West End and Capitol per showIn other cases Rs 5-0-0 per show2. Circus Rs. 2-0-0 per show3. Horse Races Rs. 100-0-0 per day of race meetings4. Amusement park Rs. 20-0-0 per day."4. The appellant paid the tax under protest and on or about April 19, 1950, filed a suit (being suit No. 89 of 1950) against the respondent in the Court of the Civil Judge, Senior Division, Poona for a declaration that the levy, collection or recovery of the said tax by the respondent was illegal and invalid, for a permanent injunction restraining the respondent from levying, collecting or recovering the said tax, for refund of the sum of Rs. 45,802-0-0- being the total amount of tax collected from the appellant, for costs and interest on judgment. By its judgment dated July 31, 1951, the trial Court decreed the suit in full. The respondent preferred an appeal before the High Court against the said judgment and decree of the trial court and the High Court by its judgment and decree dated February 10, 1953, allowed the appeal and dismissed the appellants suit with costs throughout. The High Court, however, granted to the appellant a certificate of fitness for appeal to this Court and hence this final appeal questioning the validity of the said tax.

Reasoning:
We are unable to accept this argument asappears, however, from the record that no issue was raised and no evidence was adduced by the appellant before the trial court showing that them were other cinema Houses similarly situate as trial of the appellants cinema Houses.It may not be unreasonable or improper if a higher tax is imposed on the shows given by a cinema house which contains large seating accommodation and is situate in fashionable or busy localities where the number of visitors is more numerous and in more affluent circumstances than the tax that may be imposed on shows given in a smaller cinema house containing less accommodation and situate in some localities where the visitors are less numerous or financially in less affluent circumstances, for the two cannot, in those circumstances, be said to be similarly situate.There was, however, no material on which the trial court could or we may now come to a decision as to whether there had been any real discrimination in the facts and circumstances of this case. It may be that the appellant may in some future proceeding adduce evidence to establish that there are other cinema houses similarly situate and that the imposition of a higher tax on the appellant is discriminatory as to which we say nothing; but all we need say is that in this suit the appellant has not discharged the onus that was on him and, on the material on record, it is impossible for us to hold in this case that there has been any discrimination inhas been accepted as well settled that in construing such an entry conferring legislative powers the widest possible construction according to their ordinary meaning trust be put upon the words used therein. In view of this well established rule of interpretation, there can be no reason to construe the words "taxes on luxuries or entertainments or amusements" in entry 50 as having a restricted meaning so as to confine the operation of the law to be made thereunder only to taxes on persons receiving the luxuries, entertainments, or amusements.The entry contemplates luxuries, entertainments, and amusements as objects on which the tax is to beentry, as we have said, contemplates a law with respect to these matters regarded as objects and a law which imposes tax on the act of entertaining is within the entry whether it falls on the giver or the receiver of that entertainment.Nor is the impugned tax a tax imposed for the privilege of carrying on any trade or calling. It is a tax imposed on every show, that is to say, on every instance of the exercise of the particular trade, calling or employment. If there is no show, there is no tax.A lawyer has to pay a tax or fee to take out a license irrespective of whether or not he actually, practises. That tax is a tax for the privilege of having the right to exercise the profession if and when the person taking out the license chooses to do so.The impugned tax is a tax on the act of entertainment resulting in a show. In our opinion therefore, S. 73 is a law with respect to matters enumerated in entry 50 and not entry 46 and the Bombay legislature had ample power to enact this law.