Madhya Pradesh High Court
The State Of Madhya Pradesh vs Bharat Bhushan Vyas on 4 September, 2012
1 HIGH COURT OF MADHYA PRADESH : IABALPUR VV.A. No. 76412008 (L.P.A. N0.338 of 1999) The State of Madhya Pradesh & others . -VS_ Bharat Bhusan Vyas 1--Date of Order : 4.9.2012. 2--Bench constituted of P1on'b1e Krishn Klllni-"1i" Lahoti and Hon'b1e Sint. Vim1a]ain,j]. 3-Order passed by Hon'b1e Krishn I<um.ar Lahoti, _I. 4--Whether approved for reporting .................. .. 5-Name of Course] for parties : Appellants/State by Shri P.K. Kaii.I'av,Dy.AG_ None for Respondent. ORDER
AS PER :K.RISHN KUMAR LAH{)T'I_, J_.
This appeal is directed against. an order dt.]4L.7.1.999 in W.P.No.4.-436 of 1998 by whi.ch a writ petition preferred by the respondent was allowed and it was held by the-single Bench that the population of Bina- Itawa, at the relevant. time; before 1999, was than 50,000 and the coinpounding duty pay'eiim'e at the relevant time we 4(2}(d) of the M.P. Entertainments Duty and Advertisements Tax Act, 1936 (hereinafter referred as 'Ente1'tainme'n.t Tax Act') was payable @ 25% cf the / / 2 entertainment dutv, calculateo on mil sea.ti:1q cza'-giaeitzy 03',' ciiierna hall.
2- This order has been assailed by appellants on the ground that by 1"iet;;f.iea.t:ioii dt.3.l.1€=4;9, u_iir_lei' sub- seet?.on(2) of seetioii T. of the Ei.itert:--iinmeni.s Tax Act, the State Governinent. had extended previsioii of Entertainments Tax Act to the Rina l7_ailwa},r Celoiiy, so the aforesaid colony should be irieludecl in the local area of .Bi:1a--Itawa so the rate of 30% was applicable in the matter and not of 25%. Statirig aforesaid it was submitted that the order passed by the Sitigle Bench iiiay be set aside.
3- The short question involved in this appeal for consideration of this Court is wliether the railway Ccilony of Bin-a could have been clubbed with the population of Bina-iltawa municipal. area for the _o:_1r'poses of CE11C'=.l1Eil',iE],g' compounding duty iindei" section 4i'l)((i) of the ' i EI'i".Z£5.I'tE'.-.i1"i]'i"iE?I1lZS Tax Act. To appreciate the aforesaid, it would he appropriate if factual position in the is stated. Resgioii-dent is a Proprietor of Bitarat Talkies in Bina, District Sager. He was given facility of payirig C-ompouiidiiig rluty as per section 4-{2)(<:l) of the Eiit:er~.ainnient.s Tax Act in lieu of eiitertainnieiit cluty_ There were several slabs for payiiieiit of compoiinding duty. The relevant: two slabs in the 'present are {E} pofitilatioii of the place hetwetaii 'l5.C=i3'l to S0,0{:O on which CO1'I1pO'-.i.?ldli'1(} duty was 25%) of the / 3 entertainment duty calculated on full seating capacity and (ii) for the population of the place between 50,000 to 1,00,G00, 30% of the entertainment duty calculated on full seating capacity was payable. As other slabs are not relevant in the present case, so these are not referred herein. The respondent was paying compounding duty @ 25% of the slab treating that the population of the Bina- ltawa inunicipal area was less then 50,000 so 25% of the duty of the full capacity was payable, but, the appellants herein had issued an order dt.24.12.1997 by which it was held that in Bina--ltawa Township, Railway Colony Bina was included, so after inclusion of the aforesaid colony, total population of the area was 50,243 and slab of 30% was applicable. This order had caused to the respondent to file writ petition before the High Court.
at The learned Single judge considered various provisions of the Act and found that u/s 5 of the MP. Municipalities Act, no notification was issued for inclusion of Railway Colony, Bina in Bina-Itawa municipal area, so the population of the railway colony could not have been taken i:r_1;to consideration for ascertaining the compounding duty and the slab of 25% will be applicable and accordingly allowed the writ petition and quashed the order_dt.24.12.1997'.
5- To appreciate the contentions of the appellants that vide notification dt.3.1.1949, the provision of the Entertainments Tax Act were made applicable to Bina / \ am311.cetio:'=. of a 'p1"c:-mietoz" of any Railway Colcnv area, are concerned, we have ire see 'me relevant revisions for an 31icabi1it~r of the afore-sai.o' slab.
- .1 reievani; provisions of the Emertainments Tax Act are section 2(=:c) which <;iefines 'Local area', reams tins :
"2.I}efinitions.-- in this Act unless there is anything repugnant in the subject or context-
(cc) Race] Area" shall mean a Municipal tea/Notified AI'ea;'Town Area . within the meaning of the Madhya Pradesh !'~/hlrlicipalities Act,1961 {No.37 of 19551) 01' Special Area within the mean'1ng of the Madilya Pradesh Nagar Tatha (31"a1n N'1v€-sh Adhixniyanl, 39'/3 (No.23 of 1973} or a Cantonntent within the meaning of the Can:,:.au1nent Act, 1924 {No.2 of 1924) or a viiiatge within the meazrung of the M.adhya Praderzh Land Revenue Code, .1959 (No.20 of 19.39)"
Secnon 2{dd) reads thus :
"2.i')efinit.:'ons.-- In t].?_is Act uniess there i anything repugnant in the subject o Context I (dd) "popu!asf1'0n" shail 1ean the urban agglomeration population according to the latest official census of the mace, city', town or the locahty rtoncerned"
r-131 Section 4-{2'(d} reads 'mus:
;
{2} T"-e Gc~v2.;'nrne11t 111323', on the v .
in:
\_ eu.'--3rtainn1ent. other than e:1te1'i.ai11n1en':: H', ' V.-CR. in res_;.;eci; of wtuc}: er,-?:e:"f;unm.e11ts duty is p-a_iv*a'b1e under Section alicw such / / 5 proprietor to pay by one of the modes specified hereunder as it may think fit, in such manner and subject to such conditions as may be prescribed, the amount of the duty due, namely:--
(d) by compounding duty, in lieu of the duty chargeable under Section 3 in such manner and subject to such condition as may be prescribed calculated in accordance with the method mentioned in the table below :
_ ._ ..., -
Sl Population of the Compounded Duty 1 .No ' place 9 i IL". l___.......n,,.. ___.... 1,, _.l_.._.....,.,.,.. ,,, _. l {1} ' _ {2} (:5) I 1. "Upto 25,000 520% ofentertainmentl r . lduty calculated oni i I ".'"|l'i5,0oi.' to 501000 1' .l . . .
(50,001 to 1,0o,oo0 l
5. §3,o0,oo1 to 500,000 i .I.. _____ . ,,. n__.__._ 5 7. :'Above'1o,oo,ooo l l l .. , . ., _... . ,/W. ..._, ._ Provided that lfull seating capacity. I' ' 4. 11,00,001 to 3,00,00 l l j 6. |5,oo,ooi to ui,"oofi'6did*45o/0arentertammem, [full seating capacity.
|25% of entertainment! lduty calculated on] jfull seating capacity. } l30% ofentcrtainmentj! gduty calculated on?
l35% of enl;ortain1nentl 'duty calculated on;
full seating capacity.
540% of cntertainmeritl .duty calculated on:
jfull seating capacity. I Iduty calculated on;
lfull seating capacity. ?50% ofentertainmenty! lduty calculated out jfull seating capacity. l of the amount compounded duty shall be calculated at the rates mentioned in column (3) for 90 shows in a month only irrespective of number of shows which may be exhibited in that month."
/ .
/ Section 2(_dd) of the Enteiftaiiiiiieiits Tax Act specifically provides that the iirban agglcineraticii popuiation according to the latest c'ffit:ia.l cerzs-ius oi' the place, city, town or the,ieca'ii';y concerned. The rnuiiicipai area has dei'ir=.e="' sub-::.ec:t.ie:i of section 3 L_ .' ui me 1\/ii_iriii,i;u:iiitii;s _!-'int wi.-icii lease thus .
"(I8-a) "Mz1i2:'c:;i3s21 means the snzialler urban area or the transitional area, as the Governei' may, by public notification, specify, in accordance with i;i'.E': pi'c«visiens laid.
"L u down Section 5 of this [:3-:\l.-:-
of the Municipalities Act pr-avides thus :
"5. Cerzstitiitien of 1'/Eiiiiisyi Councils and Nagar E'anc%aa3r;i?+;.-
(1) T'n.e-re shall be constituted :-
(a.) a Municipal Council fez" a sinaller urban area; and
(b) a Nagai' Pa1'1c:li.=:yai; for a rarisitienal. area, that is to say, an area in transition from a rural area to an. urban area:
Provided that a Municipal Council or a Nagar Panciiayat as the case may be, may not be constituted in such urban. area or part thereof as the Govenier may. having 1*eg:-:m;l to the size of the area and the niunicipal services being pi'ev":;cled or prtipiiszezl '.13 be provided by an industrial '\ establisiriinent or a group of :=.uch_ estebiisiinients that area and such / V 7 other factors as he may deem fit, by public notification specify to be an industrial township :
Provided further that when an area is notified to be a transitional area, the Gram Panchayat having jurisdiction over such area shall continue to function until a duly elected Nafgar Panchayat is constituted under this Act.
(2) In this section, 'a smaller urban area' or 'a transitional area' means such area as the Governor may, having regard to the population of the area, the density of the population therein, the revenue generated for local administration, the percentage of employment in non--agricultural activities, the economic importance or such other factors, as he may deem fit, specify, by public notification for the purposes of this Act."
5- The aforesaid provisions specifically provide that the municipal area shall be the area as the Governor may, by pubiic notification, specify, in accordance with the provisions laid down in Section 5 of the Act. There is nothing on record to show that the Railway Colony of Bina was ever notified under section 5 of the Municipalities Act as the municipal area. On the contrary, an earlier notification dt.9.3.1984 is on record which was published in the gazette dt.12.3.1984 in which in Ward No.21 and 22 of Bina municipality area excluding railway area was included in the municipal area of Bina--Itawa, meaning thereby that the railway area was specifically excluded form the local area of Binadtawa municipal area. No other notification is /.
<2 (3 brought recrord to show Eraai. uiidei' seotiozi of the
1..-
,__.u Municipoiitiies A::t, the 1?,-.i1w»337 area VVLIS 110'-;..i.fie<l as 'iota area of E.i1":a--Ei.awe.
7- So far as noi:i,:'icatic>o cit.3.1.19:-£9 is concerned, the provisions of the E:1te}tai:i1:'ieni:s Tax Act were ei.~<tencie:'i to the Bins. Raiiway (.To1o1;y,bu.t, for the local area of Elna, such population was no: agglomerated in the area of Bina--Itawa. In absence of any notifioatioii iiiider section 5 of the Mulii-ztipaliizies Aotftbe populaizion of the roilway colony c;o'-paid not have been inciudedi in the local eirea of Bina-Itawa iminioipel area. Iiee.:"11e-:1 Sizig-}i€--: jiidge after due appreciation of the relevant przwisions 'nus foumrl that -'Joe pomiietion of the rei'=.we.y colony could not have been eg-gEome1"ate<i in Rina-Itav-.ra 1'l"1":.1l1i_()i§3é,1} :=.-me and after excludiiig 'the afo1*es2..id populatioii, the population of Eine~h;awa municipal area, as per L110 census of 1991 was 41,612 and acco1'-tliii-yly siab of 25";-2% was applitjabie in the matter. Thougiii learned r;oL:1':se7. appearing for i:':1e eippe'«.1a.i.1ts,-'Stake s=.:}'_',-:':1ii*.-.".'eci t'o.e:'.; in the ;-,/ear 1999, the provisions of the E-3ter:iain'meri'i:s T:;:>< A::L has been arC:.e11.1ec1 and in View 'she _orovisions as Contained in Ei1T1€1'1flD'1€':1'1iZACt ':espo1i.do21t was iiebie to make ;:a"ymont of entert.aii1I.'oe:it c:':,i.;ty, but, in tho preseni. case the dispute is of prior to 1f~J*'3€3'- mid ui'ii.*.i uiiiess the aforesaid provisions made appiiitaliie 1"et'rospooi.i\.re'!3-', the 3:) tavisions of an*_=:-nrlnieiiiz Act 1'f~}E3€} s' "' .' '' .-. '. ~ -5! an - -\r\;'| . W , seas: E'-GI, be eopiirzaole 1,. o p-.e.~,e1=.t ()L:L:V€:1'- In me ;.1_ mi '. . .. \ . .. -_J,. . 'I .2. 47:', 1 F. 'W4* .,- ., ,, .-. . ,. 1I.11f3"\.-.g1'n%:','Ci \':1'..:-gzf, '\."J=',--'3 QC} RN31. ;.;flQ. ci'»]V GILC-I V'.7c:._7;d,lt1f£iTlT 0:1.
/, 9 interference in writ appellate jurisdiction. This appeal is found without merit and is accordingly disinissed.
(Smt.Vim a Jain) (firisfln Kumar Lalioti) judge.
Judge.
Khan*
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