Rama
Talkies & Ors Vs. Government of A.P. & Anr [2002] Insc 459 (1 November
2002)
N Santosh Hegde & B P Singh. Santosh Hegde,
J.
(With
CA Nos.11302-03/95)
Having
failed in their endeavour to question successfully the validity of the Andhra
Pradesh Entertainments Tax (Second Amendment) Act, 1988 inserting
Explanation-II in Section 4 of the Andhra Pradesh Entertainments Tax Act, 1939
before the High Court of Judicature Andhra Pradesh at Hyderabad, the appellants are before us in
these appeals by way of special leave. The main contention urged on behalf of
the appellants by Ms. K. Amareshwari, learned senior counsel, is that the
respondent-State could not have collected entertainment tax from the appellants
at a rate which is applicable to cinema theatres situated in the area
administered by a Municipality because the State Government under the
Municipalities Act had not issued any notification equating the respective
areas in which appellants' cinema theatres are situated, with a Municipality.
It is the contention of the appellants that in the absence of any such Gazetted
Notification the State has no authority to collect the entertainment tax at a
higher rate. This argument of the appellants was rejected by the High Court on
the ground that this was a question which was available to the appellants to be
urged in an earlier writ petition filed by them and that having not been done,
the appellants are barred by the principle of constructive res judicata from
raising such a contention in the subsequent writ petitions.
In
this appeal, we need not go to that question because it is pointed out by Mr. G
Prabhakar, learned counsel for the State of Andhra Pradesh, that in fact such a
Notification as stated by the appellants, was issued by the State Government as
could be seen from G.O.Ms.274, M.A. Health and Municipal Administration
Department, dated 29th March, 1971 which was in regard to Kothagudem notified
area. Learned counsel for the State urges similar notifications are there in
regard to other areas involved in these appeals. A perusal of this notification
shows that the State Government has, exercising the power under Section 389-A
of the Andhra Pradesh Municipalities Act, 1965, issued the above notification
wherein Kothagudem and other areas found in the different notifications have
been equated to that of a first grade municipality in the State, and the said
notification has been Gazetted in the Gazette Extraordinary issued by the
Andhra Pradesh Government published on 31.3.1971. In view of the above factual
position, we are unable to accept the argument addressed on behalf of the
appellants.
We
also find no merit in the next argument addressed on behalf of the appellants
in regard to the retrospective effect of the levy. We find in these appeals
there is no challenge to the constitutionality of the levy. The limited
challenge is based on the fact that without proper notification under the
municipality's Act, the levy could not be imposed. That argument of want of
notification, we have rejected on facts if that be so levy being a valid levy
is liable to be collected from the date of its original imposition.
In the
said view of the matter, we find no merit in these appeals and the same are
dismissed. No costs.
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