- (1.) Whether the notification issued on 31/03/1984 by the government of West Bengal, in exercise of power conferred under section 8 of the Bengal Amusements Tax Act, 1922 (Bengal Act V of 1922 (hereinafter referred to as the Act) as amended in 1981, exempting any performance organised by a bona fide group theatre, amateur theatre or amateur jatra, formed exclusively for purposes of cultural activities and not for monetary gains, by engaging artistes who are not paid any regular or contractual fees from payment of entertainment tax was beyond the power to grant exemption for social, educational and scientific purpose, thus violative of Article 14 of the Constitution is the question which arises for consideration in this appeal filed by the State of West Bengal against the judgment and order of a division bench of the Calcutta High court.
(2.) Section 8 of the Act prior to its amendment read as under: "8.Exemptions. (1) The entertainment's tax (and the show tax) shall not be charged on payments for admission to any entertainment where the State government is satisfied (A) that the whole of the takings thereof are devoted to philanthropic, religious or charitable purposes without any charge on the takings for any expenses of the entertainment; or (B) that the entertainment is of a wholly educational character (any question on that point to be determined in the case of difference by the State government in the department of education) ; or (C) that the entertainment is provided for partly educational or partly scientific purposes by a society, not conducted or established for profit; or (D) that the entertainment is provided by a society which is established solely for the purpose of promoting the interest of the industry of agriculture, or the manufacturing industry, or some branch thereof, or the public health, and which is not conducted for profit, and consists solely of an exhibition of the products of the industry, or branch thereof, for promoting the interests of which the society exists or of materials, machinery, appliances, or foodstuffs, used in the production of those products, or of articles which are of material interest in connection with the questions relating to the public health, as the case may be. (2 The State government may, by general or special order, exempt any entertainment or class of entertainment's from liability to the entertainment's tax (and the show tax). "the State government in 1975 issued a notification under Section 8 (2 of the Act exempting, from the liability of entertainment tax, dramatic performance including Jatra by professional or other organisations subject to the condition that the exemption was not available if the same was being exhibited directly or indirectly as Cabre (sic cabaret). In 1977 the notification issued in 1975 was amended and it was provided that entertainment tax was chargeable and leviable where the admission fee exceeded Rs. 15. 00. These notifications were amended twice in March and October 1979 reducing the limit of the amount on which the tax was chargeable. From 1977 onwards, therefore, there was a partial exemption related to rate of admission fee. In 1981 Section 8 of the Act was substituted by the West Bengal Taxation Laws Amendment Act and the substituted section reads as under: "8.Exemptions. The State government may, for social, educational or scientific purposes, by general or special order, exempt fully or partly the entertainment's tax, show tax, surcharge or additional surcharge payable under this Act for any entertainment or class of entertainment's, subject to such conditions as may be laid down in such order. "'in March 1984 the impugned notification was issued: "In exercise of the power conferred by Section 8 of the Bengal Amusements Tax Act, 1922 (Bengal Act V of 1922, the governor is pleased hereby to rescind, with effect from the 1st day of April, 1984, this Department order Nos. 1279 F. T. dated 31/03/1979 and 1404 F. T. , dated 10/04/1979 and Notification No. 1084 F. T. , dated 23/03/1983 and all previous orders exempting payment of entertainment tax on performances, other than cinematograph exhibition, issued under Section 8 of the said Act provided that no entertainment tax shall be charged, levied and paid in respect of any performance organised by a Group Theatre, Amateur Theatre or Amateur Jatra subject to the condition that the organisers of such performance shall obtain necessary certificate from the appropriate authority declaring them as bona fide Group Theatre, Amateur Theatre or Amateur Jatra. Explanation. (a) 'group Theatre' or 'amateur Theatre' or 'amateur Jatra' means a registered or unregistered society or a group of persons formed exclusively for the purposes of cultural activities and not for monetary gains by engaging artistes who are not paid any regular or contractual fees. 'amateur Theatre' also includes any amateur organisation engaged in dance and music. . "
(3.) On a writ petition filed by one of the professional theatres assailing exemption granted to those groups who were engaged in cultural activities, only without monetary gains, the High court held that the classification made on basis of engagement of a paid artistes was not reasonable as it did not serve the legislative objective sought to be achieved by Section 8 of the Act and consequently it was ultra vires. It was held that Section 8 empowered the government to grant exemption to any entertainment or class of entertainment if it was for social or educational or scientific purpose and since dramatic performance given by a professional group on public stages could not be said to be devoid of any social values, the classification made by the government between the amateur and professional group was arbitrary. The High court found that dramatic performance for social, educational or scientific purposes form a class by themselves and, therefore, any further classification on profit motive and engagement of artistes on contractual or regular basis was not permissible in law.;