K.RAVICHANDRABAABU,J. - (1.) The petitioner is aggrieved against the order of the 5th respondent dated 15.07.2017, wherein and whereby, the petitioner and the other licensees of Cinema theaters were directed to remit the entertainment tax every week to the 5th respondent/Municipality. Consequently, the petitioner seeks for a direction to the 5th respondent to refund the entertainment tax paid from 01.07.2017 to till date.
(2.) The case of the petitioner, is as follows: The petitioner is a Cinema Theater, run by a partnership firm. Till the introduction of Goods and Services Tax, the Government of Puducherry was collecting entertainment tax from the theater owners. In the year 1995, the Government, by its G.O. Ms. 157 dated 20.10.1995, exempted 10% for maintenance and permitted to pay the entertainment tax for the remaining 90%. After introduction of GST, the 6th respondent issued a notice dated 29.05.2017 and informed that admission to the Cinema halls is treated as supply of service and thus, directed the petitioner to get registered under the Goods and Services Tax Act. Accordingly, the petitioner got registered under the GST Act with registration No. 34AAAFB3557FIZU. As per notice dated 29.05.2017 issued by the 6th respondent, the petitioner is tendering GST at the rate of 18% with respect to tickets below Rs. 100/- and 28% with respect to tickets above Rs. 100/-. The amount taxable under the GST excludes 10% maintenance charges permitted to the theater owners. 50% of GST is paid to the Central Government and 50% to the State Government. GST was introduced with a single object of "One Nation, One Tax and One Market ". Contrary to the said concept and against the said Act, the 5th respondent, by his letter dated 15.07.2017 directed the petitioner and other theater owners to pay the entertainment tax over and above GST at the rate of 25% to the Municipality. So, totally in all, the petitioner is forced to pay 53% towards tax (28% by way of GST and 25% by way of entertainment tax). Inspite of several representations from the Puducherry Cine Exhibitors Association and Film Distributors Association, to cancel the entertainment tax in view of collection of GST, the 5th respondent did not consider the said request. Hence, with no option, the petitioner and other theater owners forced to pay 53% as tax. Collection of entertainment tax over and above the GST is nothing, but double taxation, which is against the Constitution of India. The 6th respondent has collected a sum of Rs. 10,44,508.28 in excess for the period from 01.07.2017 to 31.10.2018. Likewise, the 5th respondent has collected a sum of Rs. 96,19,068/- in excess for the period from 01.07.2017 to 31.10.2018. Such excess amount collected are liable to be refunded. Hence, the present writ petition.
(3.) The 5th respondent, filed a counter affidavit, wherein, it is stated as follows: The impugned communication is only for compliance of the law in force viz., Sections 118 and 161 of the Puducherry Municipalities Act, 1973 and thus, payment of entertainment tax by the petitioner is in accordance with law. No one has legal right to say that the law in force viz., Sections 118 and 161 of Puducherry Municipalities Act, 1973, cannot be enforced. Hence, the impugned communication does not affect the rights of the petitioner or any other persons carrying on Cinema business. Even otherwise, the said communication was accepted by the petitioner himself. The President of the Puducherry State Cine Exhibitors Association, who is none other than the petitioner, has stated in his letter dated 20.07.2017 that, on the one hand, they have expressed consent for the SGST and the CGST and on the other hand, they have also expressed their readiness to pay the entertainment tax subject to certain reservations. Thus, the petitioner is barred and estopped from disputing the collection of entertainment tax. The writ petition itself, is not maintainable as the prayer sought for is against the imposition of law in force. Admission to the Cinema halls is treated as supply of service and as per Section 15(2) of the Puducherry Goods and Services Tax Act, 2017, the value of supply shall include any taxes, duties, cesses, fees and charges levied under any law for the time being in force other than the Puducherry Goods and Services Act, Central Goods and Services Tax Act and the Goods and Services Tax (Compensation to States) Act, if charged separately by the supplier. As per the salient features of GST, the entertainment tax is not subsumed under GST, when it is levied by the local bodies. Under Entry 62 of the State list of the Seventh Schedule of the Constitution of India, taxes on entertainments and amusements has to be collected by the Panchayat or Municipality concerned. Therefore, in view of the above constitutional provision, local bodies are entitled to levy and collect the entertainment tax. As per Section 118 of the Puducherry Municipalities Act, 1973, the Municipalities in the Union Territory of Puducherry, have power and authority to impose tax on entertainment. The entertainment tax being collected is the main source of income for the Municipalities. ;