Amit Kumar Vs. State of U.P. & Ors [2007] Insc 1185 (28 November 2007)
C.K.
Thakker & Altamas Kabir
CIVIL
APPEAL NO. 5455 OF 2007 (Arising out of SLP(C) No.7731 of 2005) Altamas Kabir,
J.
1.
Leave granted.
2.
This appeal by way of Special Leave involves the question as to whether
entertainment tax was payable by the appellant in respect of a fashion show
held at Gorakhpur in Uttar Pradesh on 9th July, 2000 at St. Andrews Inter
College for the selection of "Mr. Gorakhpur" and "Miss Gorakhpur".
3. As
it would appear from the materials on record, the appellant was found to be the
organiser of the aforesaid fashion show which had been held without the
permission of the District Magistrate.
On the
basis of enquiry, it was found that entertainment tax had not been paid for
performing the aforesaid fashion show and accordingly a show cause notice was
issued to the appellant which was replied to by the appellant. Not being
satisfied with the explanation given, the District Magistrate assessed a sum of
Rs.43,270.00 by way of entertainment tax for the programme and a further sum of
Rs.20,000.00 by way of penalty which was imposed upon the Cambridge Intertia
Group under whose banner the appellant is said to have arranged the fashion
show.
4. In
his reply to the show cause notice dated 11th July, 2000 under Section 12 of the Uttar
Pradesh Entertainment and Betting Tax Act, 1979 (hereinafter referred to as
`the 1979 Act'), the appellant contended that he was only a choreographer of
Cambridge Intertia Group which arranged the programme. The appellant contended
that the programme, as arranged, did not attract the provisions of the
aforesaid Act and that the show cause notice was without jurisdiction. A
specific stand was also taken that Section 5 of the 1979 Act provided that any programme
relating to entertainment could not be held without prior permission but that
since the programme was not entertainment within the meaning of the Act, the
same had been held by the Institution with prior intimation to the office of
the District Magistrate. It was reiterated that the programme was of a
competitive nature and there was no element of entertainment involved.
Furthermore, neither was any cultural, music and dance programme conducted nor
was any amount collected from the spectators by way of entry fee. According to
the appellant, the show was organised as a charity show with the specific
purpose of publicising the event, inasmuch as, there was a proposal initiated
by Ms. Neetu Nathaniel (Respondent No. 7 herein) for establishing an Institute
of Art, Fashion Designing and Modelling at Gorakhpur in collaboration with the
Respondent No. 8, Smt. S. Mishra, proprietor of the Cambridge Intertia Group.
5.
Another stand taken by the appellant in the reply to the show cause notice was
that Miss Neetu Nathaniel was the Director and Smt. S. Mishra was the Convener
of the show and that the entire programme had been conducted under the
direction of Miss Neetu Nathaniel. In his reply, the appellant requested the
District Magistrate to issue notice to Miss Neetu Nathaniel who could enlighten
him as to the alleged collection of money against tickets sold and funds
collected from the organisers.
Since
the appellant was only a Choreographer and his main function was to provide
information about the candidates participating in the programme, he denied that
he had been involved with the holding of the programme other than as a
Choreographer for the show.
6. As
mentioned hereinabove, by his order dated 24th July, 2000 the District
Magistrate, Gorakhpur did not accept the explanation offered by the appellant
and also the contention that Miss Neetu Nathaniel was, in fact, the Director of
the programme with Smt. S. Mishra as the Convener. The District Magistrate
chose to rely on the report submitted by his Department as to the collection of
entry fee from the spectators and funds from the organisers. Reference was also
made to other shows of similar nature held in Gorakhpur where fashion shows had been held after depositing the
entertainment tax payable in respect thereof and after obtaining the permission
of the District Magistrate. Rejecting the explanation offered by the appellant,
the District Magistrate came to the conclusion that the appellant had collected
a total sum of Rs.1,62,500.00 from the spectators and a further sum of
Rs.25,000.00 from the five organisers at the rate of Rs.5,000/- from each organiser.
It was on that basis that a demand was raised by way of entertainment tax for
Rs.43,270.00 at the rate of 30% on the total collected amount of
Rs.1,87,500.00.
7. The
appellant challenged the said order of the District Magistrate by way of Civil
Misc. Writ Petition No. 2166/2002 in the Allahabad High Court.
The
same was taken up for disposal on 22nd February, 2005 and on behalf of the
writ-petitioner/appellant herein, it was sought to be reiterated that the
writ-petitioner/appellant was only the Choreographer and had no function in
holding the fashion show. It was also urged that the programme in its entirety
was charitable in nature and being for an educational purpose, was exempted
under Section 11(3) of the 1979 Act.
8.
Negating the claim of the writ- petitioner/appellant, the High Court held that
a fashion show could not be said to be in aid of education and was only meant
to entertain the public. On the said finding, the Allahabad High Court
dismissed the writ petition against which the appellant filed SLP(C) No. 7731
of 2005 wherein leave has been granted.
9. Mr.
Rameshwar Prasad Goyal, learned Counsel appearing for the appellant, reiterated
the submission which had earlier been made before the District Magistrate and
the High Court and submitted that the fashion show being merely competitive in
nature and being organised for the sake of publicity in connection with the
proposed establishment of an Institute of Art, Fashion Designing and Modelling
by the Cambridge Intertia Group, the provisions of the 1979 Act were not at all
attracted and the show cause notice which had been issued by the District
Magistrate was without jurisdiction or in excess of the jurisdiction vested in
him under the Act.
10.
Mr. Goyal urged that both the District Magistrate as also the High Court had
wrongly arrived at the conclusion that the appellant was responsible for organising
and holding the fashion show. He reiterated the submission made earlier before
the other authorities that it was the Respondent Nos. 7 and 8 who were the real
organisers and convener of the fashion show and the liability of entertainment
tax, if any, had been wrongly foisted upon him.
11. On
behalf of Respondent Nos. 1 to 6, it was, however, submitted by Mr. S.K. Dviwedi,
the Additional Advocate General for the State of U.P., that the submissions
made on behalf of the appellant would be disproved on a perusal of the
advertisement which was published on the occasion, being Annexure CA-2 of the
Counter Affidavit filed on behalf of the Respondent Nos. 1 to 5. Mr. Dviwedi
submitted that from the said advertisement it would be clear that while
Cambridge Intertia Group as an Institute of Art, Fashion Designing and Modelling
was presenting the fashion show, the Respondent No. 7 was the Director, the
Respondent No. 8 was the Programme Manager and the appellant was the Programme
Director and Choreographer on the occasion which was to be attended by a Minister
of the State Government together with various persons shown as the sponsors of
the programme.
12.
Mr. Dviwedi also submitted that since the Minister was the Chief Guest at the
fashion show, various arrangements had been made so that the programme could be
conducted safely and without any disturbance. Furthermore, one of the sponsors
shown in the advertisement, namely, Mr. Pradeep Tekriwal, had specifically
written to the authorities informing them that he was neither a sponsor of the programme
nor did he have anything to do with the programme including making any monetary
contribution.
13.
Mr. Dviwedi submitted that both the District Magistrate and the High Court had
rightly held that the stand taken on behalf of the appellant that the fashion
show was merely a charity show was not tenable and it had been rightly held
that the same was for the purpose of entertainment and that large sums of money
had been collected from the spectators on the occasion. Mr. Dviwedi also
submitted that despite the efforts of the appellant to shift the liability of
payment of the entertainment tax demanded by the Respondent Nos. 7 and 8, it
had been established that it was the appellant who had master-minded the show
with the full knowledge that the same was being held for the purpose of
entertainment and that entertainment tax was payable in respect thereof under
the 1979 Act.
14.
Mr. Dviwedi submitted that no case had been made out on the appellant's behalf
for interference with the orders passed by the District Magistrate which were
upheld by the High Court.
15. We
have carefully considered the submissions made on behalf of the respective
parties and we are inclined to agree with Mr. Dviwedi that the fashion show was
held with full knowledge that entertainment tax was payable in respect thereof
and that though tickets may not have been issued in respect of the programme
and only invitation cards had been issued, the same was merely a subterfuge for
the purpose of evading and/or avoiding payment of entertainment tax. It is
difficult to believe that the fashion show was held with the object of
educating prospective students who would be interested in joining the Institute of Art, Fashion Designing and Modelling and was, therefore, exempt under
Section 11(3) of the 1979 Act. As the advertisement referred to above indicates
the object of the show was to invite people to come and watch the new world of
glamour and modelling and to see the world of exotic fashion in Gorakhpur itself.
16.
We, therefore, see no reason to interfere with the order passed by the District
Magistrate, Gorakhpur and the High Court and we have no
hesitation in dismissing the appeal, but there will be no order as to costs.
17.
While parting with the appeal, however, we cannot but remark upon some of the
statements made in the Writ Petition filed by the appellant before the High
Court, particularly those made in paragraphs 11 and 13 which, in our view, had
little or no relevance to the issue involved in the present appeal.
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