Y V SREENIVASAMURTHY Vs. STATE OF MYSORE

JUDGEMENT

(1.) The petitioners in these two petitions are professional exhibitors of cinema shows one in Super Talkies, Bangalore City, and the other in New Opera Talkies and New Imperial Talkies in Civil Station, Bangalore A Show Tax of Es. 10 per each show has been levied on each of them under Section 3 of the Mysore Cinematograph Shows Tax Act, 1951 (Mysore Act No. XVI of 1951). This tax is in addition to the entertainment tax leviable under the Mysore Amusements Tax Act, 1932 (Mysore Act No. VIII of 1932). The petitioners contend that the Mysore Cinematograph Shows Tax Act (Mysore Act No. XVI of of 3951) is ultra vires of the powers of the State Legislature and pray for the issue of a writ of prohibition or other appropriate writ against the respondents prohibiting them from collecting the tax under the Mysore Cinematograph Shows Tax Act and for a direction to declare the said Act ultra vires of the powers of the Local Legislature. The grounds on which Act XVI of 1951 is impugned are

(2.) The contention that the tax in question is a tax on income may first be considered. The argument of the learned counsel for the petitioners is that the tax leviable under this Act cannot be and was not intended to be passed on to the person seeking and receiving entertainment but is meant to be taken out of the pocket of the petitioners and that therefore it is really a tax on income. Ho pointed out that the imposition of a tax on income is governed by the provisions of Articles 246 and 270 read with List I in the Seventh Schedule to the Constitution and that the State Legislatures have no power to impose a tax on income. It is urged that the State Government, in the guise of a levy under the Show Tax, is seeking to entirely eliminate the income of the petitioner and that in consequence the express intention of the Constitution to earmark the taxes on income to the Union Government is defeated. The learned Advocate-General for the respondents submits that the contention of the petitioners that Show Tax is a tax on income in disguise, is untenable. He relied on the very submission of the learned counsel for the petitioners that the tax may have to bo and has in fact been paid even-though the petitioner has earned no income or profit but has actually suffered a loss, in support of his submission that the tax in question is not and cannot be deemed to be a tax on income.

(3.) His argument is that a tax on a person, whether that person makes a profit or loss, can never be deemed to be a tax on income. There is good deal of force in this contention. The decision in Mathurai v. State of Madras, A.I.R.1954 Mad. 569, though not quite appropriate, has in it observations which lend full support to this view. In that case a tax on "passengers and goods carried by roaf." which under the provisions of the Act had to come out of the pocket of the proprietors of buses and could not be passed on to the passengers was held to be not a tax on the income of the proprietors. The tax uader the Mysore Cinematograph Shows Tax Act (Mysore Act No. XVI of 1951) cannot be held to be a tax on income and is therefore not hit by the provisions of Articles 246 and 270 read with List I in the Seventh Schedule to the Constitution.