Arun Tandon, J. - (1.) THE State Government under the order impugned passed in an appeal filed by the petitioner -owner of Rakes Talkies, Saharanpur under Section 12(2) of the U.P. Entertainment and Betting Tax Act, 1979 has rejected the appeal on the ground that the cinema hall of the petitioner was not air -conditioned earlier. Petitioner has realized maintenance fee from the cinema -goers but has utilized the same for the purchase of new plant and machinery for the purposes of converting his ordinary cinema hall into an air conditioned cinema hall. This purchase of new plant and machinery for providing new facility of air conditioning has been held to be not covered by maintenance within the meaning of Section 2(3) of the Act. Hence, financial liability has been fastened.
(2.) CHALLENGING the order so passed counsel for the petitioner contended that Section 3A of the Act permits for a provision being made for air conditioning within the definition of maintenance and, therefore, if the petitioner has provided for air conditioning after purchase of fresh plant and machinery, the same would fall within the definition of maintenance. It is then contended that the circular issued by the department, copy whereof is enclosed at page 52, contemplated that besides repairs of the wall, buildings, floors, gate, etc. provision could be made for improvement of air conditioning/air cooling system provided for in the cinema hall. Therefore, if a provision is made for the cinema hall being air conditioned, it will amount to improvement of the facility of air condition within the meaning of the said circular. The order of the State Government is, therefore, stated to be bad. I have heard learned counsel for the parties and have examined the records.
(3.) FOR the purposes of appreciating the controversy raised on behalf of the petitioner it is worthwhile to reproduce Section 3A of the Act, which reads as follows: 3A. Extra charge for maintenance of cinemas and for air cooled and air conditioned facility. - -Notwithstanding anything to the contrary contained in any other provision of this Act, the proprietor of a cinema shall utilize such amount of ticket value excluding entertainment tax and in such manner as may be notified by the State Government from time to time for maintenance of the cinema premises and for air cooling or air conditioning facilities.;