PUSHPANJALI TOURING TALKIES Vs. STATE OF KARNATAKA

JUDGEMENT

(1.) In all the above cases, the office is directed to prepare the cause title, preamble etc.

(2.) The petitioners are the exhibitors of cinematograph shows governed by the provisions of the Karnataka Cinemas (Regulation) Act, 1964 and the Rules framed thereunder. They are also liable to pay the taxes under the provisions of the Karnataka Entertainment Tax Act, 1958 ('the Act', for short). Petitioners are challenging the validity of Sub-section (6) of Section 4A of the Act as amended in the year 1990 and Rule 41 C of the Rules framed under the Act, as amended in the year 1991. The petitioners operate in mofussil areas and villages and there is no dispute that they operate in the areas covered by the Table annexed to Section 4A of the Act. The petitioners have to pay tax in advance under Section 4A. In case they do not conduct any show or any number of shows, to that extent refund of the tax paid can be sought for. The requirement to be complied with under Sub-section (6), while seeking the refund is challenged as unenforceable, unwarranted, arbitrary etc. Rule 41C introduced in the year 1991 is also challenged on various grounds.

(3.) The primary tax liability is created by Sections 3, 3A and 4 of the Act, providing for the tax, surcharge thereon and the levy of additional tax. However, Section 4A gives an option to the operators conducting the shows in the areas covered by the Table to pay the tax at a fixed rate depending upon the gross collection capacity, a term which is defined in the Explanation in the said Section. This tax is paid in advance; however, subsequently, if the operator is not able to conduct all the shows, he can seek refund proportionately of the tax relatable to the shows not conducted. Sub-section (6) as inserted in the year 1985 staled that: "It shall be presumed that proprietor of an entertainment has conducted all the shows permitted to be conducted by him under the Karnataka Cinemas (Regulation) Act, 1964 unless he produces a certificate in the prescribed form along with his returns from the local authority or any other authority notified by the Government that any such show has not been conducted." Similarly there was. Rule 41C governing the payment of tax under Section 4A and the Certificate to be produced while seeking the refund.