Andhra HC (Pre-Telangana)
The Film Exhibitors, Guild And Anr., ... vs State Of Andhra Pradesh And Ors. on 25 January, 1987
Equivalent citations: AIR1987AP110, AIR 1987 ANDHRA PRADESH 110, (1987) 1 ANDH LT 154 (1987) 1 APLJ 330, (1987) 1 APLJ 330
Author: K. Ramaswamy
Bench: K. Ramaswamy
JUDGMENT K. Ramaswamy, J.
1. The point raised before the Full Bench is, whether, the proprietor of a Cinema Theatre, on agreeing to pay entertainment tax under S. 5, Andhra Pradesh Entertainment Tax Act (10 of 1939), for short, "the Act", is also liable to pay "show-tax" under S. 4-A of the Act, as amended in Act 24 of 1984, for short, "the Amendment Act". (It replaced the Andhra Pradesh Ordinance No. 9 of 1984 which came into force with effect from 1-1-1984).
2. To bring home the point in issue, the material facts in W.P. No. 14852/86 that lie in a short compass are stated thus : The first petitioner is a film exhibitors' guild, a registered society, the second petitioner is the proprietor of Viswanadha Picture Palace, Chilakaluripet. The members of the 1st Petitioner's society are having Cinema Theatres in local areas of second grade municipalities and they applied for permission to pay tax under S. 5 in lieu of the tax payable under S. 4 in Form III and as per R. 27. They are governed by item (e) of Column 1 of the table appended to S. 4. They were permitted to pay tax under S. 5 in Form IV. Yet they are called upon to pay show-tax, though they are not liable as they have opted to pay tax under S. 5. Despite their objection, when insisted upon, without prejudice to their right to recover or seek adjustment in the future entertainment tax payable, they have been making payments thereof. Their application on August 8, 1986, followed by a reminder informing the IInd respondent that they are not governed by S. 4-A resulted in the impugned endorsement dt. Nov. 6, 1986, rejecting their stand and they are called upon to pay show-tax under S. 4-A in addition to the tax under S. 5. These facts are not in dispute. They are seeking mandamus directing the respondents to refrain from collecting "show-tax" under S. 4-A; consequential direction to refund or adjust the excess tax payments so far made and also to quash the impugned Memo. No. 298/86 C dt. Sept. 6, 1986. One of the points raised in W.P. No. 10703/85 at the instance of the petitioner-proprietor is the same, though the facts are slightly different. Hence it is unnecessary to dilate those facts since the point involved is the same.
3. Sri Venkat Sastry, learned counsel for the petitioners, contends that S. 4 enjoins payment of entertainment-tax on gross collection capacity on every show in the manner prescribed therein. S. 5 affords an option to the proprietor of a theatre specified on Column 2 of the table appended to sub-s. (1) of S. 5, situated in the local areas in the corresponding Col. (1) for permission to pay the amount of tax every week as specified in corresponding Entry No. 3 thereof. The members of the 1st petitioner society and the IInd petitioner have opted for the same; they were accorded permission by the IInd respondent and the permission shall continue till the end of the relevant financial year though subject to variability depending upon the exigencies enumerated in S. 5. S. 4-A enjoins the proprietor of the theatre to pay show-tax in addition to the tax under S.4. Once the option exercised by the proprietor is accepted and given permission to pay the consolidated entertainment tax, for short 'composition tax', irrespective of the number of shows exhibited and paid as per sub-s. (4) of S. 5, the liability engrafted under sub-s. (4) is absolved. S. 5 does not postulate of payment of show-tax in addition to the tax under S. 5 but in lieu of tax under S. 4. Suitable phraseology like the one in S. 4-A was not incorporated in S. 5. Therefore, the legislature intended that those who opted to pay composition tax under S. 5 are relieved of their liability to pay show-tax under S. 4-A. The power to levy and collect the show-tax is without authority of law and jurisdiction. The learned Government Pleader, on the other hand, contends that the show-tax is in addition to the entertainment tax under S. 4. Once the liability is fixed under S. 4 and S. 4-A, on accepting the composition to pay the composition tax under S. 5, the liability to pay show-tax is not absolved of. Since the show-tax is in addition to the entertainment tax, be it on the basis of gross collection capacity of each show or on consolidated basis, the liablity to pay show-tax still subsists. Therefore, the petitioners are not entitled to the declaration sought for. He placed reliance on Alankar Theatre Warangal & others v. Entertainment Tax Officer, Warangal, (W. P. No. 6440/84 and batch dated July 19, 1984) decided by our learned brothers Jeevan Reddy and Anjaneyulu, JJ. When the matter has come up before the Division Bench consisting of My Lord, the Honourable Chief Justice, and my learned brother (sic). As there is an arguable point involved, for an authoritative pronouncement, the above question has been referred to the Full Bench.
4. With a view to appreciate the contentions raised on either side, it is necessary to look to the Amendment Act. Sub-s. (1) of S. 1 provides that it is an Amending Act. S. 4 is the charging section on entertainment which reads thus:
"4. (1) There shall be levied and paid to the State Government a tax on gross collection capacity on every show (hereinafter referred to as the entertainment tax) in respect of entertainments held in the theatres specified in Col. (2) of the Table below and located in the local areas specified in the corresponding entry in Col. (1) of the said table, calculated at the rates specified in the corresponding entry in Col. (3) thereof.
TABLE Local Theatre Rate of tax on the gross collection capacity (1) (2) (3) xx xx xx
(a) Second Grade Municipalities and the contiguous area of two kilometers thereof.
All categories 21% (The explanation and other sub-sections, being machinery provisions, they are not necessary for the purpose of this case. Hence omitted).
S. 5 starts with a marginal note -
"Option to pay tax in lieu of tax payable under S. 4". Sub-s. (1) reads thus:
"In lieu of the tax payable under S. 4, in the case of entertainment held in the theatres specified in Col. (2) of the table below and located in the local areas specified in the corresponding entry in Col. (1) of the said table, the proprietor thereof may, at his option and subject to such conditions as may be prescribed, pay the amount of tax to the State Government every week as specified in the corresponding entry in Col. (3) thereof."
TABLE Local Area Theatre Amount of tax (1) (2) (3) ... ... ...
(e) Second grade Municipalities and the contiguous area of two kilometers thereof.
All categories.
16% of the gross collection capacity per show multiplied by 21.
Explanation :- For the purposes of computing the gross collection capacity per show in respect of any place of entertainment, the maximum seating capacity or accommodation and the maximum rate of payment for admission determined by the licensing authority under the Andhra Pradesh Cinemas (Regulation) Act, 1955, as on the date when the proprietor is permitted to pay tax under this section shall be taken into account.
(2) The amount of tax under sub-s. (1) shall be payable by the proprietor irrespecitve of the actual number of shows held by him in a week.
(3) Any proprietor who opts to pay tax under this section shall apply in the prescribed form to the prescribed authority to be permitted to pay the tax under this section.
(4) On being so permitted, such proprietor shall pay the tax for every week as specified in sub-s. (1).
(5) The option permitted under this section shall continue to be in force till the end of the financial year in which such option is permitted.
(6) It shall be lawful for the prescribed authority to vary the amount of tax payable by the proprietor under sub-s. (1) during the period of option permitted under this section at any time, if there is an increase in the gross collection capacity per show in respect of the place of entertainment by virtue of an upward revision of the rate of payment for admission therein or of the seating capacity or accommodation thereof or where the local area in respect of which permission is granted is upgraded or if it is found for any reason that the amount of tax has been fixed lower than the correct amount.
(7) Every proprietor who has been permitted to pay the tax under this section shall intimate to the prescribed authority forthwith such increase in the gross collection capacity per show in respect of the place of entertainments, failing which it shall be open to the prescribed authority by giving fifteen days notice to cancel the option so permitted.
(8) Where a proprietor fails to pay the amount of tax on the due date, such amount of tax shall be recoverable with interest calculated at such rate as may be prescribed.
(9) The amount of tax due under this section shall be rounded off to the nearest rupee and for this purpose, where such amount contains part of a rupee consisting of paise, then if such part is fifty paise or more it shall be increased to one rupee and if such part is less than fifty paise, it shall be ignored."
Section 4-A reads thus :-
"4-A (Tax on entertainment shows) :-
(1) In addition to the tax under S. 4 there shall be levied and paid to the State Government in the case of entertainment held in the local areas specified in Col. (1) of the Table below, a tax calculated at the rates specified in the corresponding entry in Col. (2) thereof:
Local area : Rate of tax for every show (1) (2)
(c) Second grade and third Grade Municipalities and the contiguous area of two kilometers thereof.
Four rupees (2) The tax levied under sub-s. (1) shall be recoverable from the proprietor.
(3) The provisions of this Act other than Ss. 4, 6 and 13 shall, so far as may be, apply in relation to the tax payable under sub-s. (1) as they apply in relation to the tax payable under S. 4".
5. A reading of these provisions would postulate that the proprietor of a theatre shall be levied and shall pay tax on entertainment to the State Government under S. 4. The authority is empowered to levy, on gross collection capacity "on every show", the entertainment tax in the manner prescribed in the table. Sub-s. (1) charges the proprietor to pay and empowers the authority to levy the entertainment tax. Sub-ss. (2) to (5) are the machinery provisions for computation and recovery thereof. In the matter of assessment and payment thereof, in lieu of tax payable under S. 4, an option is afforded to the proprietor of a theatre by sub-s. (1) of S. 5. Under sub-s. (3), the proprietor shall apply in Form III to the specified authority, i.e., Entertainment Tax Officer, under R. 27 for permission to pay the tax on furnishing the information required. On according permission, the proprietor shall be liable under sub-s. (2), "irrespective of the actual number of shows exhibited by him in a week" to pay the composition tax under S. 5 (1). And the payment shall be made under sub-s. (1) thereof in the manner prescribed in R. 27 and Form IV. Such permission shall continue to be in force by operation of sub-s. (5) till the end of the financial year. Sub-ss. (6) to (10) of S. 5 provide the machinery for revision. S. 4-A deals with payment of tax on "entertainment shows" in addition to the tax under S. 4. It charges the proprietor to pay to the State Government in the case of entertainment shows held in local areas specified in Col. (1) of the Table at the rates specified in Col. 2 and the provisions of this Act other than Ss. 4, 6 and 13 shall apply in relation to tax payable under sub-s. (1) as they apply in relation to the tax payable under S. 4.
6. The question, therefore, is whether a proprietor of a theatre, while paying under S. 5 the composition-tax is not liable to pay "show tax" under S. 4-A? The constitutional validity of Amendments Act Ss. 4, 4-A and 5 were upheld by the Court in W. P. No. 6404/84 and batch. It is not in dispute that Ss. 4 and 4-A are charging sections to levy and pay "entertainment tax" and "show tax" respectively.
7. Before angulating the effect of S. 5 on S. 4, it is necessary to keep in view the rules of construction of taxing statute. In Oriental Bank Corporation v. Wright, (1880) 5 AC 842 at p. 856, the Judicial Committee held that if a statute professes to impose a charge, the intention to impose a charge,subject must be shown by clear and unambiguous language. In Cape Branday Syndicate v. Inland Revenue Commissioners, (1921) 1 KB 64 at p.71.Rowlatt, J., held "in a Taxing Act, one has to look merely at what is clearly said. There is no room for any intendment. There is no equity about tax. There is no presumption as to a tax. Nothing is to be read in, nothing is to be implied. One can only look fairly at the language used.' This view was reiterated by House of Lords per Viscount Simon, L.C., in Chandlan Eagle Oil Co. v. R., 1946 AC 119 at p. 140. In A. v. Fernandez v. State of Kerala, , Bhagwati, J., speaking for the Court held that:
"If ........ the case is not covered within the four corners of the provisions of the taxing statute, no tax can be imposed by inference or by analogy or by trying to probe into the intentions of the legislature and by considering what was the substance of the matter."
In Russell v. Scott, 1948 AC 422, Lord Simonds held that, " The subject is not to be taxed unless the language of the statute clearly imposes the obligation". This was followed in D'Migator Goldsmith v. IRC, (1953 AC 347). But the strict interpretation may not always ensure to the benefit of a citizen in the language of Lord Cairns in Partington v. Attorney General, (1869) 4 HL 100 at p. 122 that "if the person sought to be taxed comes within the letters of the law he must be taxed however great the hardship may appear to the judicial mind to be." In Gursahai v. I.-T. Commissioner, , Sarkar, J, considered the scope of S. 18-A of the Income-tax Act, 1922, in the context of machinery provision for assessment of interest and held thus :
"........this provision (sub-s. (5) of S. 18-A) only lays down the machinery for assessing the amount of interest for which liability was clearly created; it in substance says that in calculating the amount of interest the machinery of calculation laid down in sub-s. (6) shall be applied. The proper way to deal with such a provision is to give it an interpretation which, to use the words of Privy Council in Mahallram Ramjidas's case, AIR 1940 PC 124, "makes the machinery workable, ut res valeat potius quam pereat." We, therefore, think that we should read sub-s. (6), according to provisions of which interest has to be calculated as provided in sub-s (8), in a manner which makes it workable and the thereby prevent the clear intention of sub-s. (8) being defeated."
In Murarilal v. B. R. Vad, , the facts were that before the assessments were made under the Bombay Sales Tax Act, 1953, the Act was amended and 1959 Act was brought on statute. Before the Amendment Act came into force, the assessee-firm was dissolved. It was contended that assessment cannot be made under the Amended Act on dissolved firm. While considering the power of the authorities, Chandrachud, J. (as he then was), speaking per majority held at page 321 thus :
"the principle is variously expressed by saying that in fiscal statutes one must have regard to the letter of the law and not to the spirit of the law, that the subject cannot be taxed by inference or analogy, that in a taxing Act, there is no governing principle to look at and one has simply to go on the Act itself to see whether the tax claimed is that which the statute imposes, that while construing taxing Acts it is not the function of the Court to give to the words used a strained and unnatural meaning and that the subject can be taxed only if the revenue satisfies the Court that the case falls strictly within the provisions of the law............."
In para 28, it was further held;
"If the statute contains a lacuna or a loophole, it is not the function of the court to plug it by a strained construction in reference to the supposed intention of the legislature. The legislature must then step in to resolve the ambiguity and so long as it does not do so, the tax-payer will get the benefit of that ambiguity. But equally, Courts ought not to be astute to hunt out ambiguities by an unnatural construction of a taxing section. Whether the statute, even a taxing statute, contains an ambiguity has to be determined by applying normal rules of construction for interpretation of statute."
At page 323 (para 32), while construing the provisions of 1953 Act and 1959 Act, it was held thus :
"The construction which we have placed on machinery provisions of the 1953 Act will give meaning and content to the charging sections, in the sense that our construction will effectuate the provisions contained in the charging section. The resourcefulness and ingenuity which go into well-timed dissolution of firms ought not to be allowed to be used as convenient instruments of tax evasion."
While so construing, the assessment of a dissolved firm under the Amended Act was upheld. In J. K. Steel Ltd. v. Union of India, , Sikri, J., (as he then was speaking), speaking for the Court, while interpreting item 26-AA(i) of Cl. 3 thereof, of the Central Excise Act, held at para 7 thus :
"It simply prescribes a rate of duty as the heading of column indicates. It is not concerned with actual ingots out of which other articles are made. It is not concerned with whether the steel ingot has paid excise duty or countervailing duty or not. It is a simple formula perhaps in artistically formulated. It is said that the item should be strictly construed, it being a taxing enactment. But no rule of principle of construction requires the close reasoning should not be employed to arrive at the true meaning of a badly drafter entry in an Excise Act. I believe I am not stretching the language of the entry against the subject, but it appears to me that in the context of the scheme of the Excise Act this is the only reasonable construction to give the entry."
In Attorney General v. Carlton Bank, (1899) 2 QB 158, 164, Lord Russell of Killoven C.J. said :
"I see no reason why any special canons of construction should be applied to any Act of Parliament, and I know of no authority for saying that a taxing Act is to be construed differently from any other Act. The duty of the Court is, in my opinion, in all cases the same, whether the Act to be construed relates to taxation or to any other subject, viz., to give, effect to the intention of the legislature, as that intention is to be gathered from the language employed, having regard to the context in connection with which it is employed. The Court must no doubt ascertain the subject-matter to which the particular tax is by the statute intended to be applied, but when once that is ascertained it is not open to the Court to narrow or whittle down the operation of the Act by considerations of hardship or business convenience, or the like."
'In STATUTORY Construction' by Crawford in S. 257 at page 506, it is stated that even construing taxing laws, "the Court should study it as a whole and even if it resorts a reasonable or liberal construction care should be taken not to defeat the intention of the legislature." In Southerland Statutory Construction, III Edition (Vol. II), S. 2115, under the Caption 'Taxation', at page 79, it is stated that :
"The basic reason for liberality of construction lies in the need for public revenue with an understanding, unexpressed in the opinion of the consequence of dwindling tax receipts in the face of increased public expenditure. The Government is the agent for all in tax matters and will benefit ultimately from taxation."
In Mc Dowell & Co. Ltd. v. Commercial Tax Officer, , while agreeing with the majority, Chinnappa Reddy, J., has held that: "Taxes are what we pay for civilized society. I like to pay taxes. With them I buy civilization. But surely, it is high time for the judiciary in India too to part its ways from the principle of Westminster (IRC v. Duke of Westminster, 1936 AC 1) and the alluring logic of tax avoidance, we now live in a welfare State whose financial needs, if backed by the law, have to be respected and met.......... It is for the Court to take stock to determine the nature of the new and sophisticated legal devices to avoid tax and consider whether the situation created by the devices could be related to the existing legislation with the aid of emerging techniques of interpretation........" It is the duty of the Court to get behind the smoke screen and discover the true state of affairs. The Court is not satisfied with the form and leave alone the substances of the transaction. This view was followed by this Court and applied in A. S. Sailaja v. Principal, Kurnool Medical College, , in considering the law relating to adoption and the constitutional mandate under Art. 15(4) of the Constitution.
8. In Whitney v. Commr. of Inland Revenue, (1926) 10 Tax Cas 88 at p. 110, Lord Dunedin said :
"My Lords, I shall now permit myself a general observation. Once that it is fixed that there is liability, it is antecedently rightly improbable that the statute should not go on to make that liability effective. A statute is designed to be workable and the interpretation thereof by a Court should be to secure that object unless crucial omission or clear directions makes that end unattainable. Now, there are three stages in the imposition of a tax: there is the declaration of liability, that is the part of the statute which determines what persons in respect of what property are liable. Next, there is the assessment. Liability does not depend on assessment. That ex hypothesi, has already been fixed. But assessment particularises the exact sum which a person liable has to pay. Lastly, come the methods of recovery, if the person taxed does not voluntarily pay."
9. In the light of the above discussion in interpretation of the taxing provision, the following principles would emerge :
(1) A taxing statute, if it professes to impose a charge, its intention must be expressed in clear, unequivocal and unambiguous language. The Court has to look at the language couched. Hunt into intention to find a charge is impermissible. There is no equity about tax. There is no presumption as to a tax. Nothing is to be read in and nothing is to be implied. No equitable construction of a charging section is to be applied. The charging section is to be construed strictly regardless of its consequences that may appear to the judicial mind to be. The burden is on the State to show that the subject is within the provisions of the Act.
(2) But in construing the machinery provisions for assessment and collection of the tax to make the machinery workable ut res valeat potius quam pereat, i.e., the Court would avoid that construction which would fail to relieve the manifest purpose of the legislation of the presumption that the legislature would enact only for the purpose of bringing about an effective result. It is not the function of the Court to hunt out ambiguities by strained and unnatural meaning; close reasoning is to be adopted; harmonious construction is to be adhered to; all the relevant provisions are to be read together to gather the intention from the language employed, its context, and give effect to the intention of the legislature. Ingenious attempt to avoid tax is to be thwarted.
Let us plough back the fertility of the above principles into the Amendment Act to ascertain whether S. 5 is the charging as well as machinery section or is only a machinery section. Undoubtedly, if it is a charging and machinery section, in the absence of an express suitable phraseology in S. 4-A, like "In addition to the tax under S. 4 or in lieu thereof, tax paid under S. 5, the proprietor shall be levied and paid show tax," the inevitable conclusion that could be drawn is that the operation of S. 4-A, on exercising an option to make an application and acceptance to pay composition tax by a proprietor under S. 5, the liability to pay the show-tax is absolved. The question, therefore, is what is the meaning of the word "in lieu of the tax payable under section" engrafted in sub-s. (1) of S. 5 of the Act and marginal note. In Warton's Law Lexicon, at page 592, the phrase "lieu of" was defined as "instead of". In the Concise Oxford Dictionary, New 17th Edition, at page 580, "in lieu of" is defined as "in the place of", "instead of". It is now well settled that marginal note is a part of the section. It is key to open mind of the legislature affording guidance in understanding their intendment. S. 4 charges the proprietor of the theatre" shall be levied and paid" tax on entertainment. S. 4-A charges "shall be levied and paid show-tax in addition to the tax under S. 4". S. 5 affords option to the proprietor to pay composition tax in lieu of, viz., in the place of or instead of the entertainment tax payable under S. 4. Under S. 4, the proprietor of a theatre shall be levied and paid tax on entertainment on every show whereas under S. 5, composition tax shall be paid irrespective of the number of shows exhibited by the proprietor of the theatre in a week. The tax so composed is pursuant to the permission accorded by the Entertainment Tax Officer in the manner prescribed under S. 5 read with R. 27 and Form IV. The indicia in arriving at the tax has been prescribed in the table provided under sub-s. (1) of S. 5 of the Act. Therefore, S. 4 and S. 4-A expressly charge the proprietor and S. 5 does not contain charging clause. So all the sections are to be conjointly and harmoniously read to ascertain the intention of the legislature whether S. 5 is only machinery section or charging one. As stated earlier, the supposed ambiguity is the result of the inapt drafting or inadvertence of the draftsman of S. 4-A while using the phraseology. Undoubtedly, sub-ss. (1), (4), (7), and (9) of S. 5 lay emphasis on payment of composition tax under S. 5 only. But, when we glean through all the sub-sections of S. 5 as a whole, it would be apparent that there is no express language engrafted, like the one in S. 4 and S. 4-A, charging the proprietor of a theatre to levy the composition tax thereunder. Instead, the phraseology employed is an option given to pay the tax under S. 5 in lieu of the tax payable under S. 4. S. 5 is a complete Code by itself only for the purpose of composition of the tax and payment thereunder instead of the tax under S. 4. S. 5 is an enabling and relieving provision; an enabling one to make avail of alternative mode of composition of the tax and the consequential payment. It relieves a proprietor from the obligation to pay entertainment tax on every show. Every proprietor of a theatre is enjoined to pay the tax levied under S. 4. There is no escape from its payment unless exempted under S. 8 or other relevant provisions. If one wants to make avail of the other mode of payment as envisaged under S. 5, it is optional and that too, subject to granting permission in the manner prescribed under S. 5. R. 27 and Form IV by the Entertainment Tax Officer. Only on according such permission and for the specified period, by operation of sub-s. (4) of S. 5, the proprietor of a theatre is entitled to pay composition tax, irrespective of the number of entertainments in a week instead of paying the entertainment tax on every show under S. 4 of the Act. After the expiry of the period of cancellation, the liability to assessment and payment under S. 4 revives. The legislative history of S. 4-A also furnishes' a clue. S. 4-A was initially brought on statute by S. 3 of the Madras Amendment Act 17 of 1949. It is a tax in addition to the tax payable under S. 4 and its operation was confined to the theatres situated within the jurisdiction of any local area whose population is between 25,000 to 50,000 and above. Therefore, the Act is inapplicable to the theatres situated in any local area whose population is below 25,000. As a result, S. 4 C was enacted to provide show tax in places with population not exceeding 25,000, in the accorded percentage as shown in Col. (3) (i) to (iv) thereof. Therefore, right from 1949, show-tax, in addition to the entertainment tax, was being levied on every proprietor of a theatre and paid to the State Government at the rates calculated in the manner prescribed under the relevant S. 4-A or S. 4-C. In the Amendment Act, S. 4-C was deleted and S. 4 A was suitably amended bringing in its ambit all the theatres under the Table appended to S. 4-A (1) and the show tax to be levied and paid at the percentage prescribed in the Table applicable to the relevant theatres in the relevant local areas. The Amendment Act brought on statute, S. 5 with a view to afford an option to a proprietor to avoid the liability to pay entertainment tax on every show under S. 4, composition tax, if agreed to be paid under S. 5, in lieu of tax under S. 4 while retaining the liability to pay show-tax under S. 4(4-A?).
10. The other contention of Sri Dasaratharama Reddy is that once the permission to pay the composition tax under S. 5 is granted, the need to maintain the record in regard to the gross collection capacity of every show as enjoined under S. 4(1) is obviated; therefore, it is not possible for the petitioners having been relieved of the burden to maintain the same to submit the records with regard to the number of shows exhibited in a week for assessment of show tax under S. 4-A. We are unable to agree. The need to maintain the records of every show and to submit the return is clearly apparent on a reading of the relevant provisions of the Act. Rules, in particular, Rr. 26, 26A, 26B, 26C, 26D, 26E, 27, 27A and 28 and the forms prescribed. The argument of Sri Venkata Sastry, though apparently alluring at first at first blush, on deeper probe we find it difficult to accept. Best it defeats the purpose of the Act. Considered from any perspective, we unhesitatingly come to the conclusion that S. 4 is the charging and machinery section for entertainment tax and S. 5 is only a machinery section to quantify and payment of the composition tax in the manner prescribed under sub-ss. (1) to (5) of S. 5 read with R. 27 and Form IV or revision or cancellation thereof under sub-ss. (6) to (9). There is no ambiguity regarding charging section. We further hold that a proprietor who opts under S. 5(1) to pay composition and accorded permission by the entertainment tax Officer, so long as such permission subsists, shall pay composition tax under S. 5(4) in addition to the show tax under S. 4-A.
11. Yet, another contention raised by Mr. Dasaratharama Reddy, learned counsel for the petitioners, is that the show-tax is to be computed under Cl. (e) of Col. (1) (local area) at multiplier by 21, as indicated in Col. 3 of the Table and that it is impermissible. As noted, S. 4-A, in the Table, in the column in respect of the relevant local area, Cl. (c) is applicable to the second grade and third grade municipalities and the contiguous area of two kilometers thereof and the rate of show tax for every show is Rs. 4/-. The manner of assessment is also indicated in Form. VI. The Andhra Pradesh Entertainment Tax Rules, 1939 were amended through G.O.Ms. No. 1664, Revenue, dt. Oct., 12, 1984. Rule 26-B was amended by R. 10 thereof. It is incorporated thus :
"Every proprietor shall submit to the assessing authority, a return in Form VI for each week not later than Monday immediately following the week to which it relates showing the details of the number of shows conducted during the previous week. Along with the return he shall also submit the extract of register in Form V for each week showing the number of persons admitted into the place of entertainment, gross amount collected for each class of admission for each show."
Form VI prescribed the procedure and whenever information is to be given for assessment to be made either under S. 4 or S. 5, the relevant columns inapplicable were directed to be omitted. Thus, it could be seen that what is sought to be levied and paid is only tax at the rate on the number of shows but not on the multiplier basis, as apprehended by the petitioners and this position, in fairness, the learned Government Pleader also did not dispute.
12. The Division Bench no doubt has not considered in extenso of this question in view of the fact that the main concentration, as indicated in the judgment was the assailment of the liability on the touch stone of the legislative incompetency and the vires under Arts. 14 and 19(1)(g) of the Constitution and the other points have been relegated to be "secondary" and this question was also one such. Thus, the main thrust by the learned counsel in the earlier cases was not so much on this problem and they considered it to be secondary and the Division Bench too had treated it to be so. Therefore, the blame is to be laid at the door of the counsel but not to the Division Bench. Thus, we find that though there is no sufficient discussion on the point, in the Division Bench judgment the conclusion is clearly in consonance with the Act and the Amendment Act. This is the only point that arises for consideration in these writ petitions.
13. Accordingly, we dismiss W. P. No. 14852/86, but without costs. Advocate's fee : Rs. 250/-. Since in W. P. No. 10703/85, other points are also involved, we refer back this writ petition for decision by the Division Bench.
13. Petition dismissed.