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Ajay Enterprises (P) Ltd. and anr. Vs. Municipal Corporation of Delhi - Court Judgment

LegalCrystal Citation
SubjectOther Taxes
CourtDelhi High Court
Decided On
Case NumberCivil Writ Appeal Nos. 543 and 544 of 1971
Judge
Reported inILR1972Delhi629
ActsDelhi Municipal Corporation Act, 1957 - Sections 142; Constitution of India - Article 14
AppellantAjay Enterprises (P) Ltd. and anr.
RespondentMunicipal Corporation of Delhi
Advocates: M.C. Chagla and; I.N. Shroff, Advs
Cases ReferredIn Gopi Prasad v. State of Punjab
Excerpt:
(i) interpretation of statutes--taxing statute--rules of construction applicable thereto--delhi municipal corporation act, section 142--construction of.; that in construing a taxing measure the question of reasonableness does not enter the judicial mind and courts cannot interfere simply on the ground of hardship.; that if the precise words use are plain and unambiguous, the court is bound to construe them in their ordinary sense, even though this may lead to a manifest injustice.; that the courts while interpreting a taxing statute have no governing principle of the act to look at and the courts have simply to go on the act itself to see whether the tax claimed under it was that which the legislative has enacted. the rule of construction of the statutes is, whether they be penal or.....prithvi raj, j. (1) since common, question of law and fact is involved in these two writ petitions, the same shall stand disposed of by this common judgment. (2) the petitioners in c. w. no. 543 of 1971 are the owners of the cinema house known as 'vishal' situated opposite rajouri gardens, new delhi. in civil writ no. 544 of 1971 the petitioners are the owners of the cinema house known as imperial' situated at paharganj, delhi. the petitioners in the two writ petitions carry on the trade or business as motion picture exhibitors and exhibitors of advertisements through slides and through shorts. (3) the petitioners in the two writ petitions have challenged the resolution passed by the municipal corporation of delhi (hereinafter called as 'the corporation') in its meeting held on 'the 4th.....
Judgment:

Prithvi Raj, J.

(1) Since common, question of law and fact is involved in these two writ petitions, the same shall stand disposed of by this common judgment.

(2) The petitioners in C. W. No. 543 of 1971 are the owners of the cinema house known as 'Vishal' situated opposite Rajouri Gardens, New Delhi. In Civil Writ No. 544 of 1971 the petitioners are the owners of the cinema house known as Imperial' situated at Paharganj, Delhi. The petitioners in the two writ petitions carry on the trade or business as motion picture exhibitors and exhibitors of advertisements through slides and through shorts.

(3) The petitioners in the two writ petitions have challenged the resolution passed by the Municipal Corporation of Delhi (hereinafter called as 'the Corporation') in its meeting held on 'the 4th January, 1971, whereby the Corporation resolved that as recommended by the standing committee vide its resolution No. 1011, dated the 23rd October, 1970, advertisement tax be charged on the basis of each advertisement (i.e., each short and slide) exhibited ineach cinema. It was further resolved that the commissioner, respondent No. 2, be asked to examine the feasibility of recovery of arrears of advertisement tax for the last three years on the basis of each advertisement exhibited in each cinema and submit his report as early as possible. The said resolution has been impugned by the petitioners on the ground that the respondents have no authority or law to impose, levy and collect advertisement tax on the basis proposed and threatened by them; that under section 142 of the Delhi Municipal Corporation Act (hereinafter to be called as 'the Act') read with Fifth and Seventh Schedules thereto, the only basis on which the Corporation could or can impose, levy and collect advertisement tax is the maximum projection area on the screen used for purposes of exhibition of advertisement slides and advertisement shorts; that the Corpora- corporation can only levy one single tax per annum on the basis of maximum projection area and that such would be the position not only for the year 1971-72, but also for the years preceding there to as also for the future years so long as the provisions of the Statute remain what they are to-day; that in the event of it being held that the Act and the Schedules permit levy of advertisement tax on the basis proposed and threatened by the Corporation, than by striking down the provisions of section 142 and/ or Fifth Schedule thereto as being vocative of the Fundamental Rights under Article 14 and/or 19(1)(f) and (g) of the Constitution and that the rates determined by the Corporation for the year 1971-72 in so far as they concern levy of advertisement tax on advertisements exhibited on screen in cinema houses as being vocative of the fundamental rights under Article 14 and/or 19(1)(f) and (g) of the Constitution.

(4) The allegation of the petitioners is that there is only one cinema screen in the cinema house and the same screen has to be used for the purpose of screening or exhibiting the main or feature film which alone the cinema-going public comes to see. In the circumstances the advertisement slide or advertisement short can only be shown on the screen for a very short duration; that the time for an advertisement slide does not usually exceed 68 seconds and time for advertisement short does not exceed usually 70 seconds; that section 142(2) lays down that tax on advertisements shall be payable in advance; that item 7 of the Fifth Schedule to the Act provides that for advertisements exhibited on screen in cinema houses for a space up to 5 sq. ft. the maximum amount of tax per annum (payable in advance) shall be Rs. 96.00 and for a space of over 5 sq. ft. and up to 25 sq. ft. the maximum amount of tax per annum shall be Rs. 120.00 and that for every additional 25 sq. ft. or less, the maximum amount of tax per annum shall be Rs. 120.00; that from the aforesaid provisions it is clear that the tax per annum (payable in advance) has to be on the basis of space ( in sq. feet) employed or utilised for exhibiting the advertisements on screen in cinema houses and not on the number of the advertisements actually exhibited on such space; that the above submission is fortified by (a) Items I and 6 of the Fifth Schedule, the basis of which also is the area of the space and the maximum amount of tax per annum (payable in advance) for such space; and (b) the Form of Notice of Demand.

(5) It is further alleged by the petitioners that by resolution No. 1298 the standing committee of the Corporation recommended to the Corporation for its approval taxes and rates for the year 1971-72 and while so doing the standing committee of the Corporation recommended the following rates of tax on advertise ments exhibited on the screen in cinema houses and other public places by means of lantern slides or similar devices:

(a) up to 5 sq. ft. Rs. 60.00 (b) over 5 sq. ft. up to 25 sq. ft. Rs. 90.00 (c) over 25 sq. ft. up to 50 sq, ft. Rs. 180.00 (d) over 50 sq. ft. up to 75 sq. ft. Rs. 270.00 (e) over 75 sq. ft. up to 100 sq. ft. Rs. 360.00 (f) for every additional 25 sq. ft. or less Rs. 90.00

(6) The petitioners further allege that the Corporation approved the rates and taxes recommended, as aforesaid, by the standing committee and the said rates and taxes are now effective for the year 1971-72, (1st April 1971 to 31st March, 1972): that if advertisement tax is levied on the basis of each one of advertisement slide and each one of the advertisement short, the advertisement tax per year will be multiple of advertisement tax levied hitherto, the multiple being the total of the number of advertisements slides and advertisement shorts; that the threat of astronomical advertisement tax hike in respect of the year 1971-72 over the advertisement tax prevailing hitherto has made it impossible for the petitioners to exhibit, in their cinema houses, advertisements through slides and shorts with effect from the 1st April, 1971 ;that a mere reading of section 142 of the Act with the Fifth and the Seventh Schedules to the Act clearly shows that it was neither the intention of the Parliament nor has the Parliament intact conferred such a taxing power on the Corporation.

(7) The petitioners in civil writ No. 543 of 1971 have alleged that for the purposes of exhibition of advertisements, the projection area, on the screen of Vishal cinema, is 500 sq. feet for slides and 1300 sq. feet for shorts and during the year 1970-71 they paid advertisement tax at the rate of Rs. 4,680.00 per annum on the basis of 1300 sq. feet being the larger of the two projection areas; that the advertisement tax proposed to be levied per annum will be several times the yearly not income of the petitioners from the exhibition of advertisement slides and advertisement shorts at their cinema as for the exhibition of average of 40 advertisements slides and 7 advertisement shorts as against the advertisement tax of Rs. 4680.00 per annum as hitherto, the advertisement tax proposed to be levied per week is Rs. 2014-00 and per year is Rs. 104760-00.

(8) The petitioners in Civil Writ No. 544 of 1971 have alleged that the maximum projection area on the screen, for advertisement purposes, in their cinema, for slides is much. below 50 sq. ft. and for shorts is 375 sq. feet and the petitioners in the past years have been paying in advance, advertisement tax of Rs. 1350.00 per annum on the basis of the larger of the two projection areas; that the advertisement tax proposed to be levied per week on the same projected area or less is about 20 per cent of what was being levied hitherto per year; that for the exhibition of average of 6 advertisement slides and 10 advertisement shorts as against the advertisement tax of Rs. 1350.00 per annum as hitherto the advertisement tax proposed to be levied per week appears to be Rs. 280.76 (Rs. 20-76 plus Rs. 260.00) and per year Rs. 14.580.00, (Rs. 1080 plus Rs. 13,500.00).

(9) Further, the contention of the petitioners is that the Legislature has equated the maximum projection area on the screen for advertisement purposes in cinema houses with the space occupied by advertisements on walls, hoardings, frame etc. and has sanctioned the maximum rate per annum of tax on advertisements in terms of that space alone and not on the number of advertisements exhibited on that space; that by reason of the proposed levy threatened by the Corporation the petitioners' right to carry on their trade or business of exhibition of advertisements slides and advertisements shorts has been brought to a complete stop as it will be impossible for the petitioners to pay advertisement tax on the basis proposed and threatened by the Corporation.

(10) Mr. G. L. Banga, Deputy Assessor and Collector, Advertisement Department, Municipal Corporation of Delhi, tiled reply affidavit on behalf of the Corporation, alleging that the proposed levy of tax is legal; that according to section 142 of the Act each advertisement including the advertisements exhibited by means of cinematograph, is to be charged separately; that the advertisement tax on shorts and slides exhibited on the cinema screen is not to be charged. on the length of the shorts or slides that it is not correct that only one short or slide is displayed throughout the year that a number of shorts and slides are shown on the screen and as such tax on every short and slide is payable by the exhibitors in terms of section 142 of the Act that the projection area mentioned in the Act has been given to facilitate the calculation of tax on shorts or slides in accordance with the rules approved by the Corporation; that the resolution passed by the Corporation is within its competence and jurisdiction and is in conformity with section 142 of the Act that although the cinema screen may be termed as single wall, hoarding, frame etc. but the advertisements displayed on the screen are to be treated in severality and the tax is to be charged for every advertisement and that the number of advertisement slides and advertisement shorts is very much material for the purpose of realisation of advertisement tax that the Fifth Schedule provides the rate of advertisement tax to be charged on one single advertisement displayed on a certain area of the screen and the tax is to be charged on every advertisement displayed on the screen; that the Act does not provide to charge tax on the basis of duration of certain period for which the adverdsement is displayed.

(11) Lastly, the respondents have contended that the remedy by way of appeal under sections 169/170 of the Act is available to the petitioners in face of which the present writ petitions are not maintainable.

(12) The petitioners filed rejoinder-affidavit to the reply filed by the respondents and controverter the pl6as raised by the respondents and reiterated the pleas raised by them in the petition. In particular it was alleged that the Fifth Schedule does not provide the rate of advertisement tax to be charged on one short or slide displayed on the screen nor does the said Schedule contemplate or authorise a charge on every advertisement displayed on the screen.

(13) Taking up the Civil Writ No. 543 of 1971, the learned counsel for the petitioners submitted that as given in para 15 of the petition, the petitioners had been paying advertisement tax at the rate of Rs. 4680.00 per annum on the basis of 1300 sq. ft. being the larger of the two projection areas as the petitioners used to exhibit on an average approximately 40 advertisement slides and 7 advertisement shorts per week in their cinema but under the threatened levy of advertisement tax, the tax would come to Rs. 2014.00 per week and Rs. 1,04,760.00 per year, as given in para. 16 of the writ petition, for the exhibition on an average of approximately 40 advertisement slides and 7 advertisement shorts per week. While dealing with writ petition No. 544 of 1971 the learned counsel for the petitioners submitted that the petitioners in the said writ petition in the past year had paid inadvance advertisement tax of Rs. 1.350.00 for the whole year 1970-71 for an average display of six advertisement slides and ten advertisement shorts per week while under the threatened levy of advertisement tax for the year 1971-72 the petitioners shall have to pay Rs. 280:76 per week and Rs. 14,580.00 per year on an average exhibition of six advertisement slides and ten advertisement shorts per .week. It was accordingly contended that the enhancement occasioned by the proposed levy is unconscionable which cannot be supported in law.

(14) Section 113(1) of the Act envisages that the Corporation shall, for the purposes of the Act, levy the following taxes:- * * * * (d) a tax on advertisements other than advertisements published in the newspaper. * * * *

(15) SUB-SECTION (3) of the said section lays down that the tax specified in sub-section (1) and sub-section (2) shall be levied, assessed and collected in accordance with the provisions of this Act and the bye-laws made there under. It will, thereforee, be seen that in sub-section (1) of section 113 of the Act, the Corporation is empowered to levy a tax on advertisements other than the advertisements published in the newspapers. Further, subsection (1) of section 99 of the Act lays down that save as otherwise provided in the Act,- * * * * (e) all moneys raised by any tax, rate or cess levied for the purposes of this Act; * * * * shall form one Fund to be entitled the Municipal Fund of Delhi (hereafter in this Act referred to as 'the Municipal Fund'). That being so, the proposed levy is an integral part of the tax measure which is intended to raise the revenue of the Corporation. In Jagan Nath and others v. Union of India : 1978(2)ELT304(SC) it was observed that challenge to tax law on the mere ground that the tariff imposed by the tax law is heavy, cannot be sustained. It will, thereforee, be seen that no challenge can be made to an imposition by way of tax only on the ground that the levy imposed is heavy one.

(16) It is a well-established principle of law that in construing a taxing measure the question of reasonableness does not enter the judicial mind and Courts cannot interfere simply on the ground of hardship as is being contended by the learned counsel for the petitioners that great hardship would be caused to the petitioners if they are made to pay the amount on account of the proposed levy than what they had been paying hithertofore. A tax is a contribution of the citizens for the support of the State or a statutory body, as the Corporation is, to enable it to meet all its public needs. It is an enforced payment for public expenses so that the Corporation may defray the expenses incurred for the common interest of all. In this View of the matter, there is no force in the above contention of the learned counsel for the petitioners.

(17) The next contention of the learned counsel for the petitioners was that item No. 7 of the Fifth Schedule of the Act provides that the tax per annum has to be on the basis of the space (in sq. feet) utilized for exhibiting the advertisements on the screen in cinema houses and not on the number of advertisements actually exhibited on such space as the tax is payable in advance and is to be paid on yearly basis. This submission, the learned counsel contended, is fortified by (a) Items I and 6 of the Fifth Schedule, the basis of which also is the area of the space and the maximum amount of tax per annum (payable in advance) for such, space, and (b) the Form of Notice of Demand. The learned counsel, thereforee, contended that having paid in advance the full amount of yearly tax for a specified space (in sq. feet) on the cinema screen, instead of showing on the said space on the cinema screen only one single advertisement for 24 hours during 365 days in a year, the motion picture exhibitor utilizes the same space for a brief duration each day for showing advertisement slides and shorts and the average time occupied in exhibiting advertisement slides and shorts each day taking all the four shows on week days and five shows on Sundays and holidays, does not normally exceed one hour, that is to say, the space (in square feet) for which he has paid in advance the full amount of advertisement tax for 365 days is hardly used for exhibiting the advertisement slides and shorts for about 365 hours in a year aggregating to about 15 days .in all out of 365 days for which the advertisement tax per annum is paid in advance. Further, it was contended that item 7 of the Fifth Schedule lays down charges for advertisements exhibited on screens in cinema houses and other public places by means of lantern slides or similar devices in terms of the space, i.e., (a) for a space up to 5 sq. ft., Rs. 96.00 are payable per annum (b) for a space over 5 sq. ft. and up to 25 sq. ft., Rs. 120.00 are payable per annum and (c) for every additional 25 sq. ft. or less, Rs. 120.00 are payable per annum. The learned counsel, thereforee, contended that the levy is to be imposed on yearly basis taking into consideration the space on the screen in cinema houses. It was, thereforee, submitted that the levy can be imposed only on the space of the screen in the cinema houses of the petitioners on yearly basis regardless of the fact as to how many advertisement slides or shorts they display on the screen, as goes the argument, the levy is intended on the space and not on the number of slides and shorts exhibited.

(18) The learned counsel next contended that the form in which the notice of demand is issued to a party is provided in Seventh Schedule to the Act and the said form demands to tax on yearly basis; how can then, the learned counsel contended, the tax be levied on yearly basis, say for the sake of argument, if advertisement of a particular item is displayed on the screen for five minutes on a single day in a year. The learned counsel next submitted that section 148 of the Act provides for imposition of tax on advertisements and that the said section envisages that every person, who erects, exhibits, fixes or retains upon or over any land, building, wall, hoarding, frame, post or structure or upon or in any vehicle any advertisement or, who displays any advertisement to public view in any manner whatsoever, visible from a public street or public place (including any advertisement exhibited by means of cinematograph), shall pay for every advertisement which is so erected, exhibited fixed or retained or so displaced to public view, a tax calculated at such rates not exceeding those specified in the. Fifth Schedule as the Corporation may determine. Sub-section (2) of the said section lays down that the tax on any advertisement livable under this section shall be payable in advance in such number of Installments and in such manner as may be determined by 'bye-laws' made in that behalf, Now, the Fifth Schedule, the learned counsel contended, contains items I to 6 pertaining to non-illuminated and illuminated advertisements on land, building, wall, hoarding, frame, post, structures etc., or carried on-vehicles, drawn by bullocks, horses or other .animals, human beings, cycle or any other device carried on any vehicle or tramcar or advertisement boards carried on vehicles or advertisement boards carried by sandwich boardmen, but in respect of all these advertisements, the tax is livable on the basis of space occupied by the advertisement. In other words, the learned counsel contended, if a non-illuminated or illuminated advertisement is displayed on a building, wall, hoarding frame, post, structure or on vehicle etc. and remains there for a year, the amount of tax payable shall be in accordance with the space occupied by the advertisement.Further it was submitted -that section 153(1) of the Act requires that when any has become due, the commissioner shall cause to be presented to the person liable for the payment thereof, a bill for the amount due and sub-section (2) thereof provides that every such bill shall specify the particulars of the tax, the period for which the charge is made and if the amount of tax for which the bill had been presented as required under section 153, is not paid within fifteen days from the presentation thereof, or if the tax on vehicles and animals, a theatre tax and a tax on advertisements is not paid after it has become due, the commissioner may cause to be served upon the person liable for the payment of the same, a notice of demand in the form set forth in the. Seventh Schedule as required by section 154(1) of the Act.

(19) It was, thereforee, contended that taking into consideration the various provisions of law set out above the inevitable inference is that tax was to be levied on the maximum projection area in a cinema house on yearly basis and not on the basis of each exhibition of advertisement slide and advertisement short. The learned counsel also submitted that even if it be assumed for the sake Of argument, which position the petitioners vehemently controvert, that the corporation is competent to levy a tax on the exhibition of each advertisement slide and advertisement short, according to the provisions of section 142 of the Act, but the provisions of the said section 142 have to be read in the light of the provisions contained in the 5th and 7th Schedules to the Act and the said three provisions, namely, the section and the two schedules, have to be read together in such a way as to harmonise their applicability. It was accordingly contended that if this principle of interpretation be kept in view then the tax has to be charged on yearly basis on the maximum projection area in a cinema house.

(20) There can be no dispute that the various provisions of an enactment are to be so construed as to give a harmonious applicability. But the question to be determined is as to what is the effect if the language of the provisions in a schedule is contrary to the provisions contained in the main enactment. Craies on Statute Law (Seventh Edition) at pages 224-225 says,

'THE schedule is as much a part of the statute, and is as much an enactment, as any other part, but if an enactment in a schedule contradicts an earlier clause the clause prevails against the schedule'.

Maxwell on Interpretation of Statutes (Eleventh Edition) at page 156 says, 'Where a passage in a schedule to a statute was repugnant to one in the body of the statute, the latter was held to prevail, and the mere wording of a specimen form in a Schedule to an Act cannot restrict- or enlarge a provision in the Act itself.' Again Maxwell on Interpretation of Statutes (Twelfth Edition) at page 12 says, 'Schedules to statutes are as much part of an Act as any other, and may be used in construing provisions in the body of the Act. Similarly, provisions in a schedule will be construed in the light of what is enacted in the sections'. It is, thereforee, evident that provisions in a schedule are to be construed in the light of what is enacted in the sections. If the words of a section are clear Without admitting of any ambiguity, one cannot refuse to give effect to the clear words of the statute, and the positive language of an enactment cannot be dispensed with. That being so, if an enactment in a schedule contradicts the language of the section, itself to which the schedule is appended, the section prevails against the schedule.

(21) Reference may be made here to The Queen v. Baines (1840) 12 A.D 227. In that case Bains took objection to the legality Of his deprivation on various grounds. One of the objection was to the form of the significavite as being issued by Dean of Arches and not by the Archbishop himself. The contention raised was that the form of significavite itself as given in the schedule proved that the jury, i.e., the Bishop was the only person who ought to certify as the form of significavite could only apply to a Bishop. Dealing with the contention Lord Denman, C.J., observed at page 227, '.........such form although embodied in the Act, cannot be deemed conclusive of a question of this nature: we have also to consider the language of the section itself to which the schedule is appended; and, if there be any contradiction between the two, which upon fair construction there perhaps will not be found to be, upon ordinary principles the form, which is made to suit rather the generality of cases than all cases, must give way.'

(22) In Dean and of hers v. Green (1883) 8 B. D. 79 Lord Penzance observed at page 89,'............... it would be quite contrary to the recognised principles upon which courts of law construe Acts of Parliament, to enlarge the conditions of the enactment, and thereby restrain its operation, by any reference to the words of a mere form, given for convenience sake in a schedule, ............'. Reference may also be made to Alien against Flicker and another (10 A.D.&E.; 639). (2). The English Reports King's Bench 42. In that case a contention was raised that distraining goods of the plaintiff for rent in arrear, and selling them without having the same previously appraised by two sworn appraisers, contrary to the form of the statute, was not legal. The question involved was whether statute W. &M.; Sess. I, C. 5, S. 2, which required two sworn appraisers to value goods distrained, was repealed as to distresses for rent not exceeding 201, by statute 57G. 3, C. 93. Dealing with the contention Petterson, J. observed, '.................. it would be giving too much effect to the loose words in the schedule, if we were to decide that they had repealed the positive directions of the preceding Act.'

(23) From the cases, referred to above, the principle deducible is that where a passage in a schedule to a statute was repugnant to one in the body of the statute, the latter is held to prevail. Besides, a statute does not make every word of schedule imperative.

(24) Section 142 of the Act empowers the Corporation to levy tax on advertisements. By virtue of the said section every person who exhibits any advertisements by means of cinematograph shall pay for every advertisement which is so exhibited, a tax calculated at such rates not exceeding those specified in the Fifth Schedule as the Corporation may determine. Now the language of section 142 is clear and admits of no doubt. Accordingly, every person who exhibits any advertisement by means of a cinematograph is required to pay such tax as the Corporation may determine and he has to pay such a tax for every advertisement exhibited by him by means of a cinematograph. Craies on Staute Law (Seventh Edition) has said at page 66, 'The meaning which words ought to be understood to bear is not to be ascertained by any process akin to speculations the primary duty of a court of law is to find the natural meaning of the words used in the context in which they occur............'.

(25) It is well settled principle of law that if the precise words used are plain and unambiguous, the Court is bound to construe them in their ordinary sense even though it may lead to a manitest injustice. Besides if a person sought to be taxed comes within the letter of law he must be taxed. In view of the express statutory provisions contained in section 142 that every person who exhibits an advertisement by means of a cinematograph has to pay tax which may be determined by the Corporation for every advertisement so exhibited, it is difficult to hold that the Corporation is not empowered to levy a tax on every advertisement exhibited in a cinema house by means of a cinematograph and that the Corporation should only levy a tax on the maximum projection area in a cinema house on yearly basis. As already observed above, if the provisions contained in a schedule are repugnant to the provisions in the body of the statute, the latter is to prevail and the schedule has to give way. Besides, in my opinion, the projection area mentioned in the Fifth schedule has been given to facilitate the calculation of tax on shorts and slides in accordance with the rules approved by the Corporation.

(26) On a fair construction of the whole matter I am of the opinion that the Corporation is competent to levy tax on each advertisement exhibited in a cinema house by means of a cinematograph and that to my mind is the proper exposition of the meaning of section 142 which section, cannot be read differently in the light of the provisions contained in the Fifth schedule to the Act and upon a fair contruction of section 142 and schedule Fifth no contradiction is discernible as is sought to be suggested by the .petitioners. Moreover, if the enacting part of an Act and the schedule cannot be made to correspond, the latter must yield to the former. If the intention of the legislature was that exhibition of advertisement by means of a cinematograph is to be taxed on the basis of projection area of the screen on yearly basis, it ought to have been so stated by effectual words in section 142 of the Act which section on the contrary says that every advertisements exhibited by mean of a cinematograph has to be taxed separately.

(27) The other contention of the learned counsel for the petitioners that the Commissioner of the Corporation, when any tax has become due, has to present to the person liable for the payment thereof a bill of the amount due specifying the particulars of the tax and the period for which the charge is made as required under-section 153 of the Act and in case if the amount of the tax for which the bill has been presented is not paid within fifteen days from the presentation thereof, the Commissioner is required to serve upon the person liable for the payment of the same, a notice of demand in the form set out in the Seventh schedule under section 154(1) of the Act and the wording of the form indicates that the notice has to be issued for payment of tax for a specified period which alone shows that the tax on each advertisement cannot be levied as the tax has to be calculated on yearly basis on the projection area of the screen, cannot be accepted. Proviso to section 153(1) of the Act says that no bill shall be necessary is case of. amongst others, a tax on advertisement, and bye-law No. 7 of the Delhi Municipal Corporation (tax on advertisements other than advertisements published in newspapers), Bye-Laws, 1959, framed by the Corporation under section 481 of the Act requires that the tax on advertisement shall be payable in advance after the Commissioner has approved of the proposed advertisement. The bye-law is also a pointer to the fact that every advertisement exhibited by means of a cinematograph has to be taxed separately and is to be exhibited only when it has bee5 approved by the Commissione There is, thereforee, no force in the contention of the petitioners that since the tax on advertisement has to be paid in advance it should be calculated on the basis of the protection area alone as otherwise it is difficult for the petitioners to pay advance tax on yearly basis as they cannot know before hand as to how many and what type of advertisements were likely to be booked by them for exhibition and what amount of tax has to be paid.

(28) The next contention of the learned counsel for the petitioners was that the proposed levy is a penal extortion, in its character and that if the same is sustained it will work harshly against the petitioners who will be compelled to pay four to five times the amount of tax which they had been paying hithertofore. The contention is not well-founded. However, since the question has been raised that the proposed levy is penal extortion in its character it will be useful to examine some authorities in this respect.

(29) Reference may be made to Inland Revenue Commissioners v. p.Ross and Coulter and others 1948 (1) All England Law Reports 616. (3). In that case in 1941 and 1942, owing to restrictions on the manufacture of whisky, sales from existing stocks were not being replaced from the distilleries, and, in view of the 100 per cent., excess profits tax, the holders of those stocks tended to restrict their business to limited sales to their customers, at a small profit, in order to keep within their standard profit. Certain promoters resorted to a scheme by which the benefit of the high prices could be obtained without attracting excess profit tax. The Revenue claimed excess profit tax in respect of transactions in stocks of whisky by virtue of section 24 of the Finance Act, 1943, which operated retrospectively. The taxing section was challenged on the ground that it was a penal provision. Dealing with the contention Lord Thankerton observed at page 625. 'It is not a penal provision; counsel are apt to use the adjective 'penal' in describing the harsh consequences of a taxing provision, but, if the meaning of the provision is reasonably clear, the courts have no jurisdiction to mitigate such harshness.'

(30) In Lord Advocate v. Fleming or Roberton and another, 1897 A.. C. 145 dealing with the question of interpreting a taxing statute Lord Valsburry L. C. observed that the Courts while interpreting a taxing statutes have no governing principle of the Act to look at and the Courts have simply to go on the Act itself to see whether the tax claimed under it was that which the Legislature has enacted.

(31) In the Attorney-General v. Lockwood (1842) 9 M&W; 376. English Reports (152) Exchequer Book 8, Alderson, B. said at page 398 that the rule of law upon the construction of the statutes is whether they be penal or remedial, to construe them according to the plain, literal, and grammatical meaning of the words in which they are expressed.

(32) In Abley v. Dale (1851) 20 L. J 233 Jervis, C. J. observed that in interpreting a statute the Court is not at liberty to depart from the plain meaning of the words used.

(33) The principle deducible from the above-cited cases is that the fact that the petitioners shall have to pay four times more amount than the tax which they were paying hithertofore, cannot outweigh the ordinary meaning of the words of section 142 which are plain to indicate that tax has to be levied on every advertisement exhibited by means of a cinematograph. In this view of the matter I am of the opinion that the advertisement tax on advertisement slides and advertisement shorts exhibited on the cinema screen is not to be charged on the length of the screen and that the tax is to be charged on every slide or short displayed by the exhibitor in terms of section 142 of the Act as the advertisements displayed on the screen are to be treated in severality.

(34) This brings me to the next point raised by the petitioners that the proposed threatened levy would amount to denying to the petitioners equality before the law inasmuch as the persons exhibiting an advertisement on land, building, wall, hoarding, frame, post or structure or upon or in any vehicle, shall pay the tax on yearly basis according to the space covered by the advertisement despite the fact that the advertisement may remain there for a year whereas the petitioners have been discriminated against and condemned to pay huge tax in respect of the advertisement exhibited by them though even for a short duration and on a small portion of the screen.

(35) The question to be determined is whether the petitioners have been discriminately treated from the persons in similar circumstances without any reasonable basis. The treatment becomes differential when it is arbitrary or not supported by a rational relation with the object of the statute. As already noted above section 142 of the Act empowers the Corporation to levy a tax on every advertisement which is erected, exhibited, fixed or retamed or structure or upon or in any vehicle at such rates not exceeding those specified in the Fifth schedule as the Corporation may determine. Since every advertisement has to be taxed in severality, it is, thereforee, not open to the petitioners to urge that the persons erecting, exhibiting fixing or retaining an advertisement upon or over any land, building, wall etc. are treated in a different way because it is one advertisement at a time which such persons had erected, exhibited, fixed or retained upon or over any land, building, wall etc. and if such persons were to exhibit an advertisement on a wall for a day and then were to remove it and exhibit another advertisement on the same wall on the second day, certainly such persons shall be charged in respect of each advertisement exhibited by them. Similarly, if the petitioners were to exhibit only one advertisement on the cinema screen for any length of period, the same shall be treated as one advertisement only. The difficulty arises when they exhibit different advertisements in which event they are bound to pay a tax on each advertisement exhibited by them. That being so, it is not open to the petitioners to contend that they are being discriminated as compared to other persons who erect, exhibit, fix, or retain one advertisement for a longer duration because the tax has to be imposed on each advertisement according to the space and the duration for which the advertisement is retained or exhibited.

(36) In Raja Jagannath Baksh Singh v. State of Uttar Pradesh and another : [1962]46ITR169(SC) , it was observed that a taxing statute can be held to contravene Article 14 if it purports to impose on the same class of property similarly situated an incidence of taxation which leads to obvious inequality. Since the levy is to be imposed on every advertisement and if the petitioners choose to exhibit more than one advertisement on the screen, they are liable to pay tax. The petitioners, thereforee, cannot contend that because a person who has erected an advertisement on a wall or a building or a house and has allowed that advertisement to remain there for a longer period has been treated differently than the petitioners as a person exhibiting or erecting an advertisement on a wall or a building or a house exhibits or erects a single advertisement at a time for which he is made to pay the tax as calculated by the Corporation. As already held earlier each advertisement exhibited or crected has to be taxed separately. In the circumstances, it is not open to that the State has a wide discretion in selecting the persons, or against.

(37) Again in Mis. East India Tobacco Co. etc. v. State of Andhra Pradesh and another : [1963]1SCR404 , it was observed at page 1735,

'.........in deciding whether a taxation law is discriminatory or not it is necessary to bear in mind that the State has a wide discretion in selecting the persons, or objects it will tax, and that a statute is not open to attack on the ground that it taxes some persons or objects and not others. It is only when within the range of its selection, the law operates unequally, and that cannot be justified on the basis of any valid classification that it would be vocative of Article 14'.

(38) In the instant case since the tax levied is on each advertisement it, thereforee, cannot be said that in the range of its selection the law imposing the tax on each advertisement operates unequally. What is postulated by Article 14 is that all persons equally situated will be treated alike. Further, no discrimination can be made amongst the persons equally situated either in the privileges conferred or in the liabilities imposed. In the circumstances the proposed levy does not expose itself to the criticism of being discriminatory.

(39) The next contention of the learned counsel for the petitioners was that in levying the tax on each advertisement and compel the petitioners thereby to pay four or five times more than the tax which they had been paying hithertofore would amount to denying them the right to practice their profession or to carry their occupation, trade or business which is guaranteed under Article 19(1)(g) of the Constitution of India. There is hardly any merit in this contention.

(40) In The Corporation of Calcutta and another v. Liberty Cinema, : [1965]2SCR477 , license fee on the cinema house fixed at Rs. 400 in 1948 per year was increased to Rs. 6,000.00 in the year 1958 by changing the basis of assessment by which license fee was fixed at Rs. 5.00 per show. The levy was challenged on the ground that it amounted to ex-pro-priation and was, thereforee, invalid as violating clauses (f) and (g) of sub-Article (1) of Article 19. It was observed that taking into consideration the approximate income which the respondents made per show, that no doubt the increase in the rate of fee from Rs. 400.00 to Rs. 6000.00 per year was large but the challenge made on the ground that it amounted to expropriation was wholly unfounded.

(41) In view of the observations of their Lordships of the Supreme Court in the above-cited case merely because the amount which the petitioners shall have to pay on account of each advertisement exhibited by them would work out to four or five times the amount which they had been paying previously would in no way amount to denying the petitioners a right to carry on their occupation, trade or business of exhibiting advertisements slides or advertisement shorts, in a cinema house.

(42) In Gopi Prasad v. State of Punjab, , the petitioner challenged the Punjab Tobacco Vend Fees Act, 1954, on the ground that the license fee was discriminatory and it amounted to unreasonable restriction on trade and business. Objection was taken on the ground that different standard of A license fee were prescribed in respect of (1) Manufacturer's or distributing agent's license, (2) license for a dealer who had illore than one assistant or employee, (3) license for a dealer who had only one assistant or employee and (4) license for a dealer or hawker who had no assistant or employee. Dealing with the contention the Bench observed that there was no substance in the objection that the State had discriminated between a dealer and a dealer by imposing different fees on different classes of dealers in tobacco as the basis of classification was according to the size and importance of the establishment in which they carried on their work which could be made the basis of the classification. In that case different fees on different classes of dealer in tobacco were upheld keeping in view the size and the importance of the establishment in which a person carried on his work and the different fees so imposed were not held to be discriminatory amounting to unreasonable restriction on trade and business.

(43) The case before me stands on a more better footing. In the instant case the amount of tax to be paid would swell not because of any discrimination but because the tax has to be paid on the exhibition of each advertisement. If the petitioners choose to do more business by exhibiting large number of advertisements, they cannot make a grievance that they should not be taxed on each advertisement so exhibited by them because section 142 of the Act empowers the Corporation to levy tax on each advertisement, In the circumstances the tax cannot be said to be an abridgment of the petitioners' fundamental right.

(44) The last contention of the learned counsel for the petitioners was that by the impugned resolution the Corporation has asked the Commissioner to examine the feasibility of recovery of arrears of advertisement tax for the last three years on the basis of each advertisement exhibited in each cinema and has further asked the Commissioner to submit his report as early as possible. It was, thereforee, submitted that the respondent-corporation is threatening to levy tax retrospectively and in law it is not entitled to do so. I need not go into the merits of this contention as the matter is still under consideration.

(45) For the reasons stated above the petition is dismissed but in the circumstances of the case, with no orders as to costs.


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