R.A.MEHTA - (1.)The petitioner the Sports Club of Gujarat Ltd. has challenged the action of the respondent-State Government in levying entertainment tax in respect of film shows held by the petitioner for its members their family members and guests.
(2.)The relevant provisions are contained in the Bombay Entertainments Duty and Advertisements Tax Act 1983 During the pendency of the petition this Act of 1923 has been replaced by the Gujarat Entertainments Tax Act 1977 and the provisions whereof are pari materia). The relevant provisions are contained in sec. 2(a) which defines entertainment to include any exhibition performance amusement game or sport to which persons are admitted for ment and sub sec. (b) which defines payment for admission as including: (i) any payment made by a person who having been admitted to one part of a place of entertainment is subsequently admitted to another part thereof for admission to which a payment involving duty or more duty 16 is required; (ii) any payment for seats or other accommodation in a place entertainment; (iii) any payment for a programme of synopsis of an entertainment (iii-a) any payment made for the loan or use of any instrument or contrivance which enables a person to get a normal or better view or hearing of the entertainment which without the aid of such instrument or contrivance such person would not get and (iv) any payment for any purpose whatsoever connected with an entertain ment which a person is required to make as a condition of attending or continuing to attend the entertainment in addition to the payment 14 any for admission to the entertainment. Sec. 3 deals with duty on payments for admission to entertainments. Sec. 3(1) provides that there shall be levied and paid to the State Government on all payments for admission to any entertainment a duty (hereinafter referred to as entertainments duty) at the following rate.... Sub-sec. (2) of sec. 3 reads as under:
"(3) Where the payment for admission to an entertainments is made by means of a lump sum paid as a subscription or contribution to any society or for a season ticket or for the right of admission to a series of entertainments or to any entertainment during a certain period .of time or for any privilege right facility or thing combined with the right of admission to any. entertainment or involving such right of admission without further payment or at a reduced charge the entertainment duty shall be paid on the amount of the lump sum but where the State Government is of opinion that the payment of a lump sum or any payment for a ticket represents payment for other privileges rights or purposes besides the admission to an entertainment or covers admission to an entertainment during any period for which the duty has not been in operation the duty shall be charged on such an amount as appears to the State Government represents the right of admission to entertainments in respect of which the entertainments duty is payable".
It is the case of the petitioner that there are nine categories of members and their nature and fees are as under: (In 1975) : a. Donor Members 7500 b. Patron Members 6000 c. Life Members 5000 d. Ordinary Members 1500-3000 plus 100.00 p.m. e. Temporary Members f. Honorary Members g. Institutional Members 7500 h. Gymkhana Members 100/- p.a. or 10/- p.m. i. Service Members 100/- p.a. or 10/- p.m. The fees have been revised from time to time but the pattern remains the same. Temporary Service and Honorary members are not entitled to attend or vote at any general meeting of the club or to be elected as members of the Executive Committee of the club or any sub-committee of the club. The club provides number of facilities to its members and guests such as facilities to play games billiards tennis table tennis badminton etc. The guests can avail of the facilities provided by the club only if accompanied by any member of the club. The petitioner club also provides residential rooms for the use of the members of the club the members of the reciprocating clubs and guests of the members. The facilities provided by the club can be utilised not only by the member but his wife and unmarried daughters above the age of 17 years. The entrance fees and annual subscription fees are irrespective of the member availing of any or all of the facilities of the club.
(3.)The petitioner club started the activity of exhibiting films once a week (except during monsoon) the admission for which is restricted to the members their wives and unmarried daughters above the age of 17 years and guests of the members. The club asked for permission for the use of 35 mm film projector and the same was granted from time to time.