BAVA CHERIYAN Vs. MUNICIPAL COUNCIL KOTTAYAM

JUDGEMENT

(1.) THESE two writ petitions are by two separate proprietors of cinema theatres in Kottayam. The respondents are the Municipal council, Kottayam and the State of Kerala. The reliefs prayed in these writ petitions are: (1) to quash Exts. P-2 and P-5 orders of the respondent municipality; (2) for a writ of mandamus to the respondents directing them to refund the entertainments tax illegally collected from the petitioners from 14th March 1963 (three years prior to the filing of these writ petitions); and (3) for a writ of prohibition restraining the respondents from collecting any entertainments tax except in strict conformity with the provisions of S. 5 (1) (a) of the Kerala Local Authorities Entertainments Tax Act, 1961 (Act 20 of 1961) and the Rules framed thereunder.

(2.) S. 3, 5 (1) and 6 (1) and (2) of the above Act read as follows: "3. General provisions regarding the levy of the tax and the rate of tax. Any local authority may levy a tax (hereinafter referred to as the entertainments tax) at a rate not less than ten per cent and not more than twenty-five per cent on each payment for admission to any entertainment. 5. (1) Admission of persons to entertainments subject to tax. (1) Save in the cases referred to in S. 4, no person shall be admitted for payment to any entertainment where the payment is subject to entertainments tax, except (a) with a ticket stamped with an impressed, embossed, engraved or adhesive stamp issued by the local authority indicating the proper tax for such ticket; or (6) in special cases, with the approval of the local authority, through a barrier which, or by means of a mechanical contrivance which, automatically registers the number of persons admitted, unless the proprietor of the entertainment has made arrangements approved by the local authority for furnishing returns of the payments for admission to the entertainment and has given security approved by the local authority for the payment of the entertainments tax. 6. Manner of payment of tax. (1) The entertainments tax shall be levied in respect of each person admitted for payment and in the case of admission by ticket, shall be paid by means of a ticket referred to in clause (a) of sub-section (1) of S. 5, and in the case of admission otherwise than by ticket, shall be calculated and paid on the number of admissions. (2) The entertainments tax in the case of admission otherwise than by ticket shall be recoverable from the proprietor. " The above sections are practically reproduced from the provisions of the Travancore-Cochin Local Authorities Entertainments Tax Act, 1951 (Act 6 of 1951 ). The provisions of the said Act came up for consideration before a Full Bench of this Court is Ismail v. Commissioner, Mattancherry municipal Council 1963 KLT. 1080. It was ruled: "it seems to us implicit in the definition, that payment for admission is the totality of the payment made by a person for securing admission to an entertainment, without excluding any part of it without which he would not be admitted". It was further ruled: "the combined effect of S. 5 (1) (a) and S. 6 (1) as extracted, is that no person shall be admitted to an entertainment except on a ticket of admission, the full value of which is inclusive of the entertainments tax payable thereon which is indicated by the label issued by the local authority to be stamped on it. This is the manner as prescribed by the Act, for the collection of tax. In effect, in such cases the tax is passed on to the person admitted for payment to the entertainment and is collected by the proprietor by the sale of a ticket to him, stamped with the label issued by the local authority. " (italics mine)

(3.) THE fact that in the decision reported in Ismail v. Commissioner, Mattancherry Municipal Council 19&3 KLT. 1080, no writ of mandamus was prayed for, for return of the tax collected, as in these writ petitions seems to me to make no difference. THE Full Bench decision declared the law that S. 5 and 6 of the Act provide for the levy of the entertainments tax and the manner of its collection. On that, it must follow that levy and collection otherwise than in accordance with the provisions of the Statute are illegal.