K.J. Sengupta, J. - (1.) By this petition -the Petitioners challenged the vires of Sec. 174(4) of the Kolkata Municipal Corporation Act, 1980 (hereinafter referred to as the said Act) or in, the alternative a declaration that the valuation of a building or a portion of which is used for public cinema shows or any of the purposes mentioned in Sec. 174(4) of the said Act by a tenant and not by the landlord cannot be determined under Sec. 170(4) of the said Act and also asked for quashing of the order dated August 29, 2002.
(2.) The short fact of the case is that the Petitioners No. 1 is a public charitable trust and being managed and administered by the Petitioner Nos. 2 to 8 who are the trustees under the scheme framed by this Hon'ble Court. A portion of the premises has been let out for running a cinema show known as 'Naz Cinema' at monthly rent of Rs. 2,000/ -. The above building has been valud for the purpose of payment of property tax under Sec. 174(4) of the said Act by the hearing officer by, the impugned order. Sec. 174(4) of the Act enables to take into consideration of income amongst others from cinema business for determining gross annual rent for the purpose of levying property tax. The aforesaid Sub -section is quoted hereunder: 174 Determination of annual valuation. 1. 2. 3. (4) In the case of any land or building or part thereof used for public cinema shows or theatrical purposes or as a place of similar public recreation, amusement or entertainment, the gross annual rent of such land or building or part, as the case may be, shall be deemed to be 71/2 % of the gross annual receipts in respect of which cinema shows of theatrical purposes or place o1 public recreation -, amusement or entertainment, including receipts from rent and advertisements and sale of admission tickets but excluding tax on the sale of such tickets. Provided that the provisions of the Sub -section shall not apply in the case of temporary fairs, circuses and casual shows or purposes.
(3.) The said business of cinema show is not a temporary one. Mr. Bhaskar Sen, learned Senior Counsel submits while supporting this petition that the aforesaid Sub -section (4) ultra vires Constitution of India in as much as the measure for determination of annual rent in essence is a tax on income from the business of the cinema show and the same does not relate to land and building. The Slate legislature is not competent to legislate for imposition or levy of tax on income. The object of the present Act is to enable Corporation to realize tax in relation to land and building which falls under entry 49 of list II in the 7th schedule of the Constitution of India, whereas tax on income falls under entry 82 of list I in the same schedule, He contends further that upon, careful reading of the aforesaid Sub -section it appears that determination of the tax has no bearing nor any relation to the building rather it has got direct nexus with the income of cinema business.;