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1. The interesting question that arises in this writ petition is this: Is the proprietor of a discotheque liable to pay duty under the provisions of the Bombay Entertainment Duty Act, 1923?

2. The petitioners own a hotel in Bombay known as "Oberoi Towers". Since 1975 they conduct in the hotel a club called "The Cellar". The club is a discotheque where music is piped and a dance floor is provided for those who wish to dance. There is seating accommodation and drinks and snacks can be purchased. The music is suitable for what is described as modern dancing. Entrance to the club is restricted to its members and their guests and to the residents of the hotel.

6. The word 'entertainment' is used in the Act as a noun to mean that which entertains or is intended to entertain. Duty under the Act is payable on payments for admission to that which entertains or to any place in which that which entertains is held. That which entertains is that which diverts and includes an exhibition, performance or amusement. The proprietor of that which entertains is the person responsible for or in charge of its management.

7. A discotheque is a dance hall wherein a certain type of music is piped in, usually through an amplifying system. It is equipped with a floor for dancing. It is typified by flashing ligtts. Basically, a discotheque is on a par with a dance hall for ballroom dancing. A dance in the sense of a couple executing a ballroom dance, entertains and diverts both those who are dancing and those who are looking on. It is an. entertainment.

8. Modern or disco dancing also entertains and diverts both those who dance and those who look on and is an entertainment. Admission to a discotheque is admission to a place in which there is modern or disco dancing; therefore, to a place in which an entertainment is held. Payment for admission into a discotheque is hence, payment for admission to an entertainment. The proprietor of a discotheque is the person responsible for the management thereof. He is, therefore, upon an analysis of its provisions liable to pay duty under the Act.

20. Due regard must also be had to the proviso under Section 3, introduced by the Amending Act. There-after in the case of discotheques, only 15% of the total payment per person per show can be deemed to he payment for admission and duty must be levied accordingly. The proviso indicates that the total payment charged by the proprietor of a discotheque include in a substantial measure payment for privileges, rights and purposes other than the admission to the entertainment.

21. In this view of the matter, the order dated March 6, 1980 is quashed and set aside. The authorities shall consider afresh what part of the subscription paid by members of the club called "The Cellar" represents payment for privileges, rights or purposes other than the admission to the entertainment in the discotheque and shall charge duty only on the balance amount.