BALAJI KALAMANDIR Vs. ENTERTAINMENT TAX OFFICER
HIGH COURT OF ANDHRA PRADESH
BALAJI KALA MANDIR
ENTERTAINMENT TAX OFFICER
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B.Subhashan Reddy, J. -
(1.)This Writ Petition arises under the provisions of the Andhra Pradesh Entertainment Tax Act, 1939, as amended later from time to time. Earlier, entertainment tax was payable on the basis of actual admissions made into the theatre for entertaining. But the amendment brought forth during the year 1984 introduced for the first time the slab system under section 4(1) of the Act specifying the amount of tax having regard to the several factors as ordinary, air-cooled, air-conditioned as also depending on the location of the theatres within the territorial jurisdiction of a municipal corporation, a selection grade municipality, a first grade municipality, a second grade municipality, a third grade municipality and lastly a gram panchayat. Under Sec.5(l) of the Act, an option is given to the exhibitor to enter into an agreement to pay the compounded tax. While the tax under Sec.4(l) is payable on the theatre being run, the tax under Sec.5(l) is payable irrespective of the running of the theatre in that financial year. No doubt, the petitioner herein has entered into an agreement to pay compounded tax under Sec.5(l) of the Act under the bona fide impression that the theatre falls within a third grade municipality for which the tax payable is 14% of the gross collection capacity per show multiplied by 17 and here there are no categories like airconditioned, air-cooled, or ordinary and the tax is the same at a flat rate for all categories irrespective of population even. A marked distinction is provided for the tax payable for theatres in gram panchayats, townships, or other local authorities and distinction is made on the basis of the theatre being permanent and semi-permanent under one category and touring and temporary under the other category. Distinction is also drawn having regard to the population: For areas with a population of 15,000 and above for first category, the tax payable is 14% of the gross collection capacity per show multiplied by 14 while under the second category 13% of the gross collection capacity per show multiplied by 10. For areas with a population of 7,500 and above but below 15,000 it is 13% of the gross collection capacity per show multiplied by 14 under the first category while under the second category it is 12% of the gross collection capacity per show multiplied by 10. For areas with a population of less than 7,500 under the first category the tax levied is 12% of the gross collection capacity per show multiplied by 14 while under the second category it is 12% of the gross collection capacity per show multiplied by 7.
(2.)The petitioner assails the final show-cause notice dt. 25-1-92 issued by the first respondent in proceedings Rc.No.B/170/91 whereundertheentertainment tax payable by the petitioner is computed treating the same to be located within the precincts of Ellendu Municipality. The tax demanded is Rs.71,891/-. The petitioner contends that though at the first instance it had sought time for payment of the same subject to proper assessment, in the second representation dt.2-2-92 a plea is taken that the theatre in question is situated within the limits of Sudimalla gram pranchayat which is a notified scheduled area and as such the tax has to be levied under clause (g) of the table appended to Sec .5 of the Entertainment Tax Act. The learned Government Pleader contends that inasmuch as in the agreement which is in format provided under the statutory rules the petitioner had agreed to pay the entertainment tax treating the theatre to be located in Ellendu municipality, it is estopped from raising a plea contra to that. We are afraid, we cannot accede to this contention. As there is no estoppel against a statute and when the statute levies the tax differently for different local authorities and that too basing on the several factors as permanent, semipermanent, touring and temporary, as also the population, the entertainment tax can be levied only on the basis of law as provided under the statute and not otherwise. Any agreement repugnant to the statutory provisions shall be void and non- est and cannot be looked into and, more so in a fiscal law. Further there is no estoppel against a statute.
(3.)The next question is as to whether Sedimalla Gram Panchayat was constituted into a municipality and was notified to be a part and parcel of Ellendu municipality. The matter was adjourned more than twice so as to enable the Government to produce necessary notification under the Andhra PradeshGram Panchayats Act, 964, or under the Andhra Pradesh Municipalities Act, 1965, to apprise us with regard to the deletion of the areas of Sudimalla Gram Panchayat in exercise of powers under Sec.3(2)(c) of the Andhra Pradesh Gram Panchayats Act, 1964, and that they were notified as being included into Ellandu Municipality. The learned Government Pleader has fairly submitted that there are no such notifications issued in that regard and as such the only conclusion can be that Sudimalla Gram Panchayat remains a Gram Panchayat and as such the entertainment tax is leviable treating the petitioner - theatre to be located in Sudimalla Gram Panchayat and covered by clause (g) of the table appended to,Sec.5(1) of the Entertainment Tax Act. There is yet another aspect to be considered which is the population. This issue is left open to be adjudicated upon by the District Collector, who is the second respondent herein, who shall hold enquiry after giving notice to the petitioner with regard to the population of Sudimella Gram Panchayat and then report to respondent No.1 so as to enable respondent No.l to levy tax having regard to the population of Sudimalla Gram Panchayat. This exercise has to be made within a period of one month from the date of receipt of this order. Until the tax is determined on the basis of population treating the petitioner-theatre to be located in Sudimalla Gram Panchayat, the petitioner, admittedly a semi-permanent theatre coming under category 1, shall be liable to pay entertainment tax at the rate of 12% of gross collection capacity per show multiplied by 14 subject to payment of differential tax if the population is more than 7,500. If any excess entertainment tax has been paid by the petitioner from 1-4-1989 onwards, the same shall be adjusted in the future taxes payable and till such set off the petitioner shall not be called upon to pay the current taxes.
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