THE GONDWANA CLUB, SEMINARY HILLS, NAGPUR 440006, THROUGH ITS PRESIDENT Vs. STATE OF MAHARASHTRA, THROUGH ITS SECRETARY, REVENUE AND FOREST DEPARTMENT, MANTRALAYA, MUMBAI

JUDGEMENT

(1.) The petitioner challenges the proceedings initiated by the Entertainment Tax Inspector, Nagpur in pursuance of the notices demanding the entertainment duty to the tune of Rs.2,000/per month, per pool-table.

(2.) The petitioner 'Gond wana Club' is a society registered under the Societies Registration Act. The object of the petitioner-Club is to provide for social entertainment and physical and mental recreation of its members. In furtherance of the said object, the petitioner-club provides facilities for games, sports and other amenities, as may be desirable for the achievement of the object. The petitioner-Club has a reading room, library, swimming pool, table tennis tables, tennis court, gymnasium as also billiards tables with which we are concerned. It is the case of the petitioner that the petitioner Club is run on the principles of mutuality that exclude the charge-ability of entertainment duty or tax under the Maharashtra Entertainments Duty Act. According to the petitioner Club, the facilities provided by the club are meant only for its members, as per the rules of the club. It is stated that monthly fees are paid by the members of the club as per rules. It is stated that only the members of the club, their guests and the persons possessing service membership are entitled to avail the facilities provided by the petitioner Club. It is stated that though the billiards tables are meant for the physical and mental recreation for its members, the Entertainment Tax Inspector, Nagpur has served the impugned notices demanding entertainment duty of Rs.2,000/per month for each billiards table. According to the petitioner, the action on the part of the Entertainment Tax Inspector is bad in law and is liable to be set aside.

(3.) Shri Harish Thakur, the learned Counsel for the petitioner Club took this Court through the various provisions of the Act to point out that the Entertainment Tax Inspector had no jurisdiction to initiate the proceedings for recovery of entertainment duty on the billiards table by considering that the petitioner Club was operating a pool parlour. It is submitted that in view of the provisions of Sec. 3 of the Act, entertainment duty is payable to the State Government on payment, for admission fixed by the proprietor for any entertainment, as is provided under Sec. 3 of the Act, including a pool game. It is stated that on a reading of Sec. 3 of the Act and the definition of the term "entertainment" as also the terms "pool game" and "pool parlour" as defined in Sections 2(a) and 2(b1) and 2(b2) of the Act respectively, it is clear that the Entertainment Tax Inspector could not have demanded the entertainment duty from the petitioner Club. It is stated that entertainment duty could be chargeable for entertainment, that may include a pool game or a pool parlour, only when persons are admitted to the entertainment, on payment. It is submitted that the Entertainment Tax Inspector has charged entertainment duty by considering that the petitioner Club was running a 'pool parlour' within the meaning of the term, as defined by Sec. 2(b2) of the Act. It is stated that a 'pool parlour' would mean a place of entertainment wherein one or more tables are provided for playing a pool game, for which a payment is required to be made, in any manner or form. It is stated that the public at large is not permitted to use the billiards tables in the petitioner Club as they are meant for the recreation of its members only. It is submitted that if facilities are provided by the petitioner Club to its members on the principles of mutuality, entertainment duty cannot be levied under the provisions of the Act. A reference is also made by the learned Counsel for the petitioner to the provisions of Sec. 4 of the Act to point out that no person other than the person who has to perform the duty in connection with an entertainment or a duty imposed upon him by any law, shall be admitted to any entertainment except with a valid printed ticket or complimentary ticket, which would be for a fee. It is submitted that on a combined reading of the provisions of Sections 2(a), 2(b1), 2 (b2), 3 and 4 of the Act, it is clear that the petitioner would not be liable to pay entertainment duty on the billiards tables, provided by the petitioner Club exclusively for its members. The learned Counsel relied on the judgment of the Honourable Supreme Court in the case of M/s Geeta Enterprises and others Vs. State of U.P. and others reported in (1983) 4 SCC 202 and specially paragraph 12 thereof to canvass that only a show, performance, game or sport which contains a public colour, that is, when the show is open to public in a hall, theatre or any other place where members of public are invited or attend could be "entertainment". It is stated that it is clear from the tests laid down by the Honourable Supreme Court in paragraph 12 of the said judgment that the facility provided by the petitioner Club to its members for playing billiards, without a fee or charge cannot be termed as "entertainment", thereby fastening the liability on the petitioner Club to pay entertainment duty under the provisions of the Act. It is stated that the Entertainment Tax Inspector could not have imposed the duty on the petitioner Club, specially when it is not the case of the Inspector that the petitioner Club is charging any fee or ticket for playing the game of billiards.