Altamas Kabir,J. - (1.) The petitioner is a public limited liability company carrying on a hotelier business and is the owner of the Taj Bengal Hotel situated in Calcutta. The petitioner claims to have started a night club named "INCOGNITO" in or about the month of April, 1993. The night club has a bar with seating arrangement where food and drinks are served. It also has a dance floor where members and their guests dance to pre-recorded music. There is no live performance by singers, musicians or bandsman, nor is any exhibition, performance, amusement, game, sport, cabaret dance or floor-show provided. The night-club is not open to the public and only members and their guests and guests of the hotel can enter the night club. While the members pay an annual membership fee and guest charges for their guests, the guests of the hotel are not required to make any payment for visiting the night club.
(2.) The West Bengal Entertainments and Luxuries (Hotels and Restaurants) Tax Act, 1972, hereinafter referred to as "the 1972 Act", provides for imposition of tax on entertainments and luxuries in hotels and restaurants. Provision for air-conditioning being a luxury under the aforesaid Act, the petitioner-company is required to pay luxury tax under Section 4 of the Act in respect of the hotel and the restaurants therein, including the aforesaid night club.
(3.) Clause (b) of Section 2 of the 1972 Act, prior to its amendment by the West Bengal Finance Act, 1994, defined entertainment as follows : " 'entertainment' means any exhibition, performance, amusement, game, sport, cabaret dance or floor-show and includes performance by any singer, musician or bandsman provided in any hotel or restaurant." After amendment, clause (b) of Section 2 of the 1972 Act reads as follows : " 'entertainment' means any exhibition, performance, amusement, game, sport, cabaret dance Or floor-show provided in any hotel or restaurant.";