Case Law Details
Santacruz Gymkhana Vs State of Maharashtra (Bombay High Court)
Demand of entertainment duty on billiard tables
Law as laid down by the Nagpur Bench of this Court in Gondwana Club (supra) will squarely apply to these petitions as well. Paragraphs 5 and 6 of Gondwana Club (supra) read as under :-
The word “entertainment” is defined by the provisions of Section 2(a) of the Act. The relevant provisions of Section 2(a) of the Act provide that entertainment includes any exhibition, performance, amusement, game or sport to which persons are admitted for payment. In the instant case, we are concerned with the pool-game. Pool-game is defined by Section 2(b-1) which means a game played on a pool table or billiards table or any table by whatever name called. A pool-game is played in pool parlour and according to the Entertainment Tax Inspector, the petitioner-Club operates a pool parlour in the club and in the said pool parlour, the billiards tables are provided. Under Section 2(b-2) of the Act a ‘pool parlour’ means a place of entertainment wherein one or more tables are provided for playing a pool-game for which the persons are required to make payment in some manner or form. It is apparent from a reading of the provisions of Section 2(a), 2(b-1) and 2(b-2) of the Act that for an entertainment including a pool-game in a pool parlour, a person is required to be admitted only on payment in some manner or form. Section 3 of the Act, which is the charging section provides that entertainment duty could be levied and paid to the State Government for admission to entertainment, including the pool-game entertainment. Section 4 of the Act provides for the method of levy of duty and it further provides that no person other than a person who has to perform some duty in connection with an entertainment or a duty imposed upon him by law, shall be admitted to an entertainment except with a valid ticket or complimentary ticket. On a combined reading of the provisions of Section 2(a), 2(b-1), 2(b-2), 3 and 4 of the Act, it is clear that entertainment duty could be levied only if the entertainment is provided on payment. It would now be necessary to consider whether entertainment is provided by the petitioner-Club to the public, on payment. It is not the case of the respondents that the billiards tables in the club are permitted to be used by the public on payment. It is also not the case of the respondents that the members of the club, for whose entertainment and recreation the billiards tables are provided, are required to pay separately for using the billiards tables. On a reading of the rules of the petitioner-Club, it appears that only the regular members of the club, their guests, and the service members are permitted to use the facilities provided by the club. It is stated on behalf of the petitioner that the members of the petitioner-Club mutually provide for themselves, certain facilities that could be exclusively used by them and are not available to the public, even on payment. As per the test laid down by the Hon’ble Supreme Court in paragraph 12 of the judgment in the case of M/s Geeta Enterprises (Supra) a show, performance, game or sport should contain a public colour, in that, the show should be open to public in a hall, theatre or any other place where members of the public are invited, or attend the show. The said test, as laid down by the Hon’ble Supreme Court for ascertaining whether a show, game or sport could fall within the legal connotation of the word “entertainment” as defined under the Act, is not satisfied in the circumstances of the present case as the billiards tables in the petitioner-Club cannot be used by the public at large. The public is neither invited to use the tables nor is permitted to use them. The billiards tables are provided only for the members of the petitioner-Club with a view to achieve the object of the club of providing social entertainment and physical and mental recreation. The Entertainment Tax Inspector has levied the duty on the premise that the petitioner runs a ‘pool parlour’ in the club where the billiards tables are provided. Under Section 2(b2) of the Act, a pool parlour would be a place of entertainment where tables are provided for playing a pool-game for which payment is necessary. It is not the case of the respondents that payment is made by the public for using the billiards tables for the pool-game. The billiards tables in the petitioner-Club would not be a game or sport to which persons are admitted for payment and hence, the same cannot be considered as entertainment for which duty is leviable under Section 3 of the Act, more so when the pool-game or tables do not satisfy the tests as laid down by the Hon’ble Supreme Court in paragraph 12 of the judgment in the case of M/s. Geeta Enterprises (supra). Apart from the fact that the aforesaid game in the club does not contain a public colour, the further test that the exhibitor should derive some benefit in terms of money even if the admission to the hall is free, is also not satisfied as the club is not benefited in terms of money by the use of the billiards tables by the members of the club. We are not inclined to accept the submission made on behalf of the respondents that since the members are required to pay some monthly charges to the club, they are admitted for payment and the pool-game in the club would be an entertainment, specially when the tests laid down by the Hon’ble Supreme Court are not satisfied and it is not disputed that the members of the club mutually provide the facilities to be used exclusively by themselves and the same are not made available to the general public, even on payment.
6. Since the action of the Entertainment Tax Inspector of initiating proceedings against the petitioner-club for payment of entertainment duty is bad in law, the impugned demand notices are hereby quashed and set aside.
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