S.B.SINHA, J. - (1.) LEAVE granted. Introduction:
(2.) DOCTRINE of unjust enrichment, as opposed to doctrine of retention, is the core question involved herein. It arises out of a judgment and order dated 21.10.2008 passed by a Division Bench of the Bombay High Court in Writ Petition No. 22 of 2006. Background facts: Respondent is a company registered and incorporated under the Companies Act. It inter alia is engaged in the business of operating a multiplex theatre, commonly known as Fame Adlabs in the town of Mumbai for screening of films in the said theatre. Indisputably, the provisions of the Bombay Entertainments Duty Act, 1923 (for short "the Act") are applicable to the said multiplex theatre. The State of Maharashtra, however, adopted a policy decision to provide certain exemptions in the matter of payment of entertainment duties. Entertainment duty is payable at the rate of 45% on payment for admission by the proprietors so far as the multiplex theatres constituted within the limits of the Brihan Mumbai Municipal Corporation are concerned. Respondent availed the said exemption. It, however, even during the period for which it was not liable to pay any duty or duty at the rate of 25% only realized the entire duty. Appellants issued a notice dated 5.12.2005 demanding 75% of the entertainment tax reflected by the respondent on its tickets for the period between 24.06.2005 and 22.09.2005, i.e., Rs. 1,16,95,846/-. On or about 30.12.2005, the appellant issued another notice demanding Rs. 1,16,95,846/- within 48 hours. Further on 21.01.2006 issued a further demand notice to the respondent for a sum of Rs. 70,39,529/- for the period between 23.09.2005 and 5.01.2006.
(3.) THE writ petition having been filed questioning the legality and/ or validity of the said notices of demand, the High Court by reason of the impugned judgment directed: "To conclude, it cannot be said that merely because the proprietors printed full entertainment tax duty on the admission ticket though they were only liable to pay 25% of the entertainment tax duty for a period of 2 years for which they were eligible for 75% exemption of the entertainment tax, they are liable to pay 100% entertainment tax without there being any express authority of law created by the Statute. On the other hand, it would deprive them of the incentive which has been specifically offered under the scheme for which the Act came to be amended and would be in total conflict with the object and reasons with which the Government sought amendment of the Act nor this can be considered as a case of unjust enrichment as even, otherwise, the gross admission fee which the patron is supposed to pay minus the entertainment tax and other taxes (direct or indirect) would ultimately go in the pocket of the proprietors of the multiplex theaters. 63. THErefore, we find that the State was not entitled to claim more than what could be levied as entertainment duty during the two years period irrespective of the fact that the Exhibitors have shown on admission tickets issued to patrons 45% of the duty though they were liable to pay only 25% of 45% during the incentive period which was of 2 years. THE impugned notices and order Exh A-1 and A-2 and H are quashed and set aside. Rule made absolute with no order as to costs." Contentions Mr. Shekhar Naphade, learned senior counsel appearing on behalf of the appellants, in support of this appeal, urged: (i) Having regard to the provisions of the Act and the Bombay Entertainments Duty Rules, 1958 (for short "the Rules") in terms whereof entertainment duties were to be levied and collected, the High Court committed a serious error in opining that the State had not granted any exemption to the owners of the multiplex theatre, but the same were by way of retention benefit. (ii) As admittedly from the tickets issued by the respondent, it would appear that they had realized full duties from the cinema- goers payable in terms of the Act for which they had no authority, the impugned judgment is wholly unsustainable. (iii) Any amount of tax illegally realized by the assessee from the cinema-goers would be hit by Section 72 of the Indian Contract Act and, thus, the State would have right to recover the same in exercise of its power conferred on it under Article 296 of the Constitution of India. ;