FILM EXHIBITORS GUILD Vs. GOVERNMENT OF ANDHRA PRADESH

JUDGEMENT

(1.) The point raised before the full bench is whether the proprietor of a cinema theatre on agreeing to pay entertainment tax under section 5 of effect from 1-1-1984).

(2.) To bring home the point in issue the material facrts in W.P. No. 14852/86 that lie in a short compass are stated thus: The first petitioner is a film exhibitors guild a registered society the second petitioer is the proprietor of viswanadha picture palace, Chilakaluripet. The members of the first petitioner's society are having cinema theatres in local areas of second grade municipalities and they applied for permission to pay tax under Section 5 in lieu of the tax payable under Section 4 in Form III and as per Rule 27. They are governed by item (e) of Column 1 of the table appended to Sec. 4. They were permitted to pay tax under Section 5 in Form IV. Yet they are: called upon to pay show-tax, though they are not liable as they have opted to pay tax under Sec. 5. Despite their objection, when insisted upon, without prejudice to their right to recover or seek adjustment in the future entertainment tax, they have been making payments thereof. Their application on August 8, 1986, followed by a reminder informing the second respondent that they are not governed by Section 4-A resulted in the impugned endorsement dated November 6, 1986, rejecting their stand and they are called upon to pay show-tax under Section 4-A in addition to the tax under Section 5. These facts are not in dispute. They are seeking mandamus directing the respondents to refrain from collecting "show-tax" under Section 4-A; conseqential direction to refund or adjust the excess tax payments so far made and also to quash the impugned Memo No. 298/86-C dated September, 1986. One of the points raised in W P. No. 10703/85 at the instance of the petitioner-proprietor is the same, though the facts are slightly different. Hence it is unnecessary to dilate those facts since the point involved is the same.

(3.) Sri Venkata Sastry, learned counsel for the petitioners, contends that Section 4 enjoins payment of entertainment-tax on gross collection capacity on every show in the manner prescribed therein. Section 5 affords an option to the proprietor of a theatre specified in Column 2 of the table appended to sub-section (1) of Section 5, situated in the local areas in the corresponding column (1) for permission to pay the amount of tax every week as specified in corresponding entry no. 3 thereof. The members of the first petitioner-society and the second petitioner have opted for the same; they were accorded permission by the second respondent and the permission shall continue till the end of the relevant financial year though subject to variability depending upon the exigencies enumerated in Section 5. Section 4-A enjoins the proprietor of the theatre to pay show-tax-in addition to the tax under S.4. Once the option exercised by the proprietor is accepted and given permission to pay the consolidated entertainment-tax, for short 'composition tax' irrespective of the number of shows exhibited and paid as per sub-sec. (4) sub-sec. 5, the liability engrafted under sub-sec. (4) is absolved. Sec. 5 does not, postulate of payment of show-tax in addition to the tax under Sec. 5 but in lieu of tax under Section 4. Suitable phrasology like the one in Section 4-A was not incorporated in Section 5. Therefore, the legislature intended that those who opted to pay composition tax under Section 5 are relieved of their liability to pay show-tax under Section 4-A. The 'power to levy and collect the the show-tax is without authority of law and jurisdiction. The learned Government Pleader, on the other had, contends that the show- tax is in addition to the entertainment tax under Section 4. Once the liability is fixed under Section 4 and Section 4-A, on accepting the composition to pay the composition tax under Section 5, the liability to pay show-lax is not absolved of. Since the show tax is in addition to the entertainment-tax, be it on the basis of gross collection capacity of each show or on consolidated basis, the liability to pay show-tax still subsists. Therefore, the petitioners are not entitled to the declaration sought for. He placed reliance on Alankar Theatre, Warangal & others vs. The Entertainment Tax Officer, Warangal (W.P.No. 6440/84 and batch dated July 19, 1984) decided by our learned brothers Jeevan Reddy and Anjaneyulu, JJ. When the matter has come up before the Division Bench consisting of My lord, the Honourable Chief Justice, and my learned brother, Anjaneyulu, J., the correctness of the ratio in the above judgment was assailed by the learned counsel. As there is an arguable point involved, for an authoritative pronouncement, the above question has been referred to the Full Bench.