JTPAC Vs. MARADU MUNICIPALITY

JUDGEMENT

(1.) The petitioner is a performance arts centre engaged in conducting various events. On 14/10/2016, the petitioner proposed to conduct a music concert at Hotel Le Meridian which falls within the jurisdiction of the 1strespondent Municipality. The petitioner, accordingly, approached the 1strespondent and also produced 1020 tickets of Rs.600.00 each for getting the stamp under the provisions of the Kerala Local Authorities Entertainment Tax Act, 1961 (hereinafter referred to as the 1961 Act) r/w the provisions of the Keral Local Authorities Entertainment Tax Rules, 1962 (hereinafter referred to as the 1962 Rules). On 4/10/2016, the petitioner was called upon to deposit entertainment tax at Rs.1,24,080.00, Service Cess of Rs.3102.00 and deposit of Rs.50,000.00 (totalling to an amount of Rs.1,77,182.00), on the 1020 tickets. Upon receipt of the above notice, the petitioner remitted the entire amount as is evident from the receipt which is on record as Ext.P1(a). Ext.P2 proceedings of the Municipality indicate that the permission was granted to the petitioner for conducting the event. Ext.P2 also records that a total sum of Rs.1,77,182.00 had been paid by the petitioner. The 1020 tickets which were produced by the petitioner before the Municipality were also duly stamped. According to the petitioner, the petitioner could sell only 265 tickets and the balance 755 tickets which remained unsold were surrendered to the 1st respondent along with a request for refund of the advance entertainment tax paid on the 755 unused tickets. The petitioner also sought for a refund of security deposit. However, the Municipality refunded only the security amount of Rs.50,000.00. As regards the claim for refund of entertainment tax on 755 unsold tickets the petitioner received Ext.P4 communication stating that the Municipality had decided to appropriate the amount of entertainment tax paid on the 755 unsold tickets to the Chairperson's Distress Relief Fund. Though the petitioner agreed to remit a sum of Rs.10,000.00 towards the Distress Relief Fund, the Municipality failed to refund the amount of entertainment tax paid on the 755 unsold tickets to the petitioner. An appeal filed by the petitioner before the Council of the Municipality was also dismissed prompting the petitioner to approach this Court seeking the following reliefs:-

(2.) Sri. Anand Geo, the learned counsel appearing for the petitioner vehemently submits that, going by the provisions of Sec. 3 of the 1961 Act and the definitions of 'admission' and 'admission to entertainment' in sub Sec. (1) of Sec. 2 and sub Sec. (2) of Sec. 2 of 1961 Act, the entertainment tax under the 1961 Act could only be on the tickets that had been sold and the petitioner was entitled to a refund in respect of the tax paid on the unsold tickets. He also placed reliance on a Full Bench Judgment of this Court in Municipal Council, Kottayam v. K. Mahadeva Iyer; 1970 KLT 577 and particularly to an observation in paragraph 6 of the above said judgment which also indicates that the petitioner is entitled to a refund of the entertainment tax paid on the unsold tickets. The learned counsel also placed reliance on the provisions of Art.265 of the Constitution of India to contend that the Municipality had no authority whatsoever to transfer the tax paid on unsold tickets to the Chairperon's Distress Relief Fund. It is submitted that the tax can be levied only by authority of law and there was no authority under law to transfer the entertainment tax paid by the petitioner on the unsold tickets to the Chairperson's Distress Relief Fund.

(3.) The learned counsel appearing for the respondent Municipality submits that, when entertainment tax has been paid in advance, it is open to the Municipality to deny the claim for refund on the ground that the Council of the Municipality had decided to transfer the amount to the Chairperon's Distress Relief Fund. It is submitted that the petitioner has no statutory right to obtain refund of the amounts remitted by him towards entertainment tax. It is submitted that there is no illegality in the impugned orders and the writ petition is liable to be dismissed.