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Municipal Corporation of Delhi Vs. Palace Cinema and anr. - Court Judgment

LegalCrystal Citation
SubjectOther Taxes
CourtDelhi High Court
Decided On
Case NumberCivil Writ Appeal No. 1709 of 1967 and Civil Miscellaneous (Main) Appeal No. 10 of 1968
Judge
Reported inILR1972Delhi163
ActsDelhi Municipal Corporation Act, 1957 - Sections 142 and 455
AppellantMunicipal Corporation of Delhi
RespondentPalace Cinema and anr.
Advocates: T.C.P. Lal, ; J.P.Gupta and; F.C.Bedi, Advs
Cases ReferredThe Borough Municipality of Amalnor v. The Pratap Spinning
Excerpt:
.....municipal corporation act (1957) - section 142 advertisement--tax on display of advertisement on cinema screen--liability for--independent of, and in addition to the recovery sections.; (repelling the contention on behalf of the respondent cinema that the advertisement-tax on display of advertisement on its screen was no payable by it, inasmuch as no permission for display of the advertisements in question was sought for or granted by the commissioner of the corporation) that section 142 not only imposes the liability but also quantifies it when read with the fitfth schedule. if such liability is not discharged by non-payment of the advertisement tax which has become payable, the corporation would certainly be entitled to employ coercive processes provided by section 154 to 162 of the..........district judge, delhi) (respondent no. 5) in the appeal (hta no. 218 of 1966) filed by the palace cinema (respondent no. 1) under section 169 of the delhi municipal corporation act, 1957, hereinafter referred to as 'the act,' against the demand of advertisement tax claimed by the corporation by its letter dated march 28-1- 1966. (2) the palace cinema aforesaid has filed the civil miscellaneous (main) under article 227 of the constitution of india praying that the demand ofrs.6,750.00 upheld by the additional district judge, delhi, by his aforesaid order be quashed(3) the palace cinema is a cinema showing cinematograph films. they also exhibit advertisements on their screen by advertising slides and advertisement filmlets. the corporation claimed a sum of rs. 12,915.00 by their.....
Judgment:

S.N. Andley, J.

(1) This judgment will dispose of Civil Writ Petition No. 1709 of 1967 and Civil Miscellaneous (Main) No. 10 of 1968. The Writ petition has been filed by the Municipal Corpora- lion of Delhi, hereinafter referred to as 'the Corporation.' The prayer in the writ petition is to quash the order dated October 17, 1967 of the Additional District Judge, Delhi) (respondent No. 5) in the appeal (HTA No. 218 of 1966) filed by the Palace Cinema (respondent no. 1) under section 169 of the Delhi Municipal Corporation Act, 1957, hereinafter referred to as 'the Act,' against the demand of advertisement tax claimed by the Corporation by its letter dated March 28-1- 1966.

(2) The Palace Cinema aforesaid has filed the Civil Miscellaneous (Main) under Article 227 of the Constitution of India praying that the demand ofRs.6,750.00 upheld by the Additional District Judge, Delhi, by his aforesaid order be quashed

(3) The Palace Cinema is a cinema showing cinematograph films. They also exhibit advertisements on their screen by advertising slides and advertisement filmlets. The Corporation claimed a sum of Rs. 12,915.00 by their demand dated March 28, 1966 alleged to be the advertisement tax due from the Palace Cinema for the period April 1, 1959 to March 31,1966

(4) Section 113(1) of the Act imposes an obligation upon the Corporation to levy taxes and clause (d) of this sub-section requires the Corporation to levy 'a tax on advertisements other than advertisements published in the newspapers.' Sub-section (1) of section 142 of the Act imposes an obligation on every person to pay, inter and, for every advertisement which is exhibited or displayed to public view a tax calculated at such rates not exceeding those specified in the Fifth Schedule to the Act as the Corporation way determine

(5) In the writ petition, the Corporation alleged that the Palace Cinema 'has a screen where on they exhibited advertisement slides from April Ii, 1959 to March, 31, 1967. On June 29, 1964, the Zonal Assistant Commissioner of the Corporation asked the Palace Cinema to furnish details of Advertisements in their cinema house and the size of the screen. The period for which this information was required was not disclosed exept by inviting the attention of the palace Cinema to bye- law 8 of the Tax on Advertisements (Other than Advertisements Published in Newspapers) By-laws, 1959, hereinafter referred to as 'the Bye-laws' The Palace Cinema gave the requisite information by their letter dated July 10, 1964, and stated, inter alia, that the largest screen space used at any time for the purposes of advertisements and filmlets was 625 square feet while for slides, it was very much less. By its demand dated July 27, 1964, the Corporation assessed the amount due from the Palace Cinema at Rs. 13,500.00 on account of advertisement tax on display of advertisements on cinema screen of 625 square feet liable under section 142 of the Act for the period April, 1, 1959 to March 31, 1965 and notified that if the demand was not met within 30 days of the service of the notice, a warrant of distress or attachment will be issued for recovery of the same with costs. The Palace Cinema, by their letter dated August 29, 1964, showed cause against the demand and stated, inter alia, that in their earlier letter they had merely stated the size of the screen space as 625 square feet as it existed at the time of the said letter; that up to December, 1962, the largest screen space used at any time for the advertisement was 408 square feet; that the space area for the slide advertisement was only 154 square feet and that the average screen space used up to 1962 was 254 square feet while on the date of this letter it was 389 square feet. The Palace Cinema contended that the liability to pay advertisement tax came into operation only when sanction was granted by the Commissioner to display the advertisements and since no permission had either been asked for or given, the demand was not covered under any provision of the Act or the Bye- laws and was, thereforee, illegal. Then, on March 28, 1966, the Corporation made a demand of Rs. 5,355.00 - on the basis of 408 square feet from Aprill, 1959 to December 20, 1962 and a demand of Rs. 7,560.00 on the basis of 625 square feet from December 21, 1962 to March, 31,1966

(6) It was against this demand that the Palace Cinema filed an appealt in the Court of the District Judge, Delhi, under section 169 of the Act. The Additional District Judge, Delhi, who dealt with the appeal came, to the conclusion that the demand for the period prior to March 28, 1963, was barred by time; that the demand for the three remaining days of March, 1963, was premature and that a demand could only be made for payment of advertisement tax for the three years preceding the date of notice. On the question whether the entire screen space was utilised the Additional District Judge held that in view of the fact that no prior intimation had been given to the Commissioner of the Corporation tha. only a part of the screen would be utilized for exhibiting advertisements the Commissioner had ample justification to charge advertisement tax calculated on the entire area of the screen and assessed the advertisement tax payable for the three years immediately preceding the notice of demand at Rs. 6,750.00 partially reducing the amount of demand from Rs. 12,915.00 to Rs. 6.750.00

(7) In the Civil Miscellaneous (Main) filed by the Palace Cinema, It is contended that no permission was sought by them for display of advertisements etc. on the screen from the Corporation for the period in dispute and advertisement tax could not be claimed unless such permission is sought or granted; that advertisement tax was payable only for the part of the screen which was actually utilized for the advertisements and on this basis, if the advertisement tax was due, it would amount only to Rs. 4,320.00 and not Rs. 6,750.00 as held by the Additional District Judge. The Palance Cinema, thereforee, prayed for quashing the order of the Additional District Judge

(8) The first question that falls for consideration is whether the adverttisement tax could not be claimed from the Palace Cinema as permission to display the Advertisement or advertisements was not granted by the Commissioner of the Corporation. The Central Government framed the Bye-laws under sub-section (2) of section 142, section 143, subsection (1) of section 481 and section 482 read with sub-section(2) of section 481 of the Act and these Bye-laws are called 'The Delhi Municipal Corporation (Tax on advertisements other than advertisements published in newspapers) Bye-laws, 1959' and they came into force on and from the first day of April, 1959. The relevant bye-law is bye-law 6 and clauses (1) and (2) thereof which alone are relevant provide:-

'6.(1) Every person desiring to erect, exhibit, fix, retain or display an advertisement shall send or cause to be sent to the Commissioner, not less than ten clear days before advertisement is to be displayed and in time before printing copies of advertisements or painting advertisements or exhibiting them in any manner, a notice in duplicate in writing in such form as may be determined by the Commissioner with all the particulars required therein together with a copy of the matter to be advertised. Provided that the Commissioner may for reasons to be recorded in writing, reduce the time limit in special cases. (2) The Commissioner shall within seven days from the date of receipt of the notice intimate to the applicant the tax due on the intended advertisement provided the Commissioner approves of the advertisement. The Commissioner may disapprove of an advertisement, among others, on the ground that its contents or the manner of its display is indecent or otherwise offensive to good taste or public sentiment.'

Then bye-law 7 provides:-

'THEtax on advertisements shall be payable in advance after the Commissioner has approved of the proposed advertise-ment.'

(9) BYE-LAW 6 requires every person desiring, inter alia, to exhibit or display an advertisement to send to the Commissioner of the Corporation by the time specified a notice in writing in the form prescribed containing the particulars required. On receipt of this notice, the Commissioner is required, within seven days of its receipt, to intimate to the applicant the tax due on the intended advertisement provided the Commissioner ' approves of the advertisement. It is only upon the approval of the Commissioner that the advertisement tax becomes payable in advance under bye-law 7. It is the common case of the parties that for the period in question the Palace Cinema did not send.the requisite notice and, thereforee, there was no occasion for the Commissioner to give the intimation as specified or to grant the approval. It is contended by the Palace Cinema that the manner specified by the Bye-laws for the assessment of the advertisement tax on the intended advertisements by the Palace Cinema not having been followed, the advertisement tax cannot be recovered under the provisions of the Act and the only action which could be taken against the Palace Cinema was for the Corporation to impose the penalty provided by bye-law 9 which is in these terms:-

'9.Whoever contravenes any provision of any of the follow- ing bye-laws or fails to comply with any order or direction lawfully given to him under any of the said bye-laws, shall be punishable:- (a) With fine which may extend to fifty rupees and in the case of a continuing contravention or failure, with an additional fine which may extend to fifteen rupees for every day during which such contravention or failure continues after conviction for the first such contravention or failure, or (b) With fine which may extend to ten rupees for every day during which the contravention continues, after the receipt of a notice from the Commissioner or any municipal officer duly authorised in that behalf, by the person contra- vening any of the said bye-laws requiring such person to discontinue such contravention:-By laws:-2, 3,4,5,7 and 8.'

(10) The contention of the Palace Cinema is not even statable. Bye-law 6 is not one of the bye-laws enumerated at the foot of bye-law 9. thereforee, the contravention of bye-law 6 would not attract bye-law 9. There is no contravention is this case even of bye-law 7 as there was no approval of the Commissioner and no-payment of the advertisement tax after the grant of approval. No action could, thereforee, be taken against the Palace Cinema under bye-law 9 in the facts of this case.

(11) SUB-SECTION (1) of section 142 of the Act imposes upon every person who, inter alia, exhibites or displays any advertisement to public view to pay for every advertisement which is so exhibited or displayed, a tax calculated at such rates not exceeding those specified in the Fifth Schedule as the Corporation may determine. Then sub-section (2) of this section provides that the tax on any advertisement livable under this section shall be payable in advance in such number of Installments and in surh manner as may be determined by bye-laws made in this behalf. The further contention of the Palace Cinema is that the manner of payment of the advertisement tax has to be determined by the Bye-laws and if there is no such determination, there cannot be any liability upon the advertiser to pay the advertisement tax. Sub-section (1) of section 154 of the Act provides, inter aha, that if the amount of the 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 and if such demand is made under this section and is not met within thirty days from the service of the notice of demand, action can be taken under sub-section (1) of section 156 of the Act for recovery by distress and sale as this sub-section provides that if the person liable for the payment of tax does not, within thrirty days from the service of the notice of demand, pay the amount due, such sum together with all costs and the penalty provided for in section 155, may be recovered under a warrant by distress and sale of the movable property or the attachment and sale of the immovable property of the defaulter. Reliance is placed by the Palace Cinema upon the decision reported in in re- Installment Supply Ltd. v. State of Delhi() where it has been observed that in a taxing statute one has to look merely at what is clearly said and there is no room for any intendment or equity. Reliance is also placed upon the decision reported in A.I.R. 1952 Bom 401 in re: The Borough Municipality of Amalnor v. The Pratap Spinning, Weaving and .) where it has been observed that statutes which impose pecuniary burdens are subject to the rule of strict construction. These are well-known principles for the construction and application of taxing statutes but we do not see how they go to support the contention which has been advanced on behalf of the Palace Cinema

(12) If the Bye-law are kept out of consideration altogether, there will be no doubt that the liability to pay the advertisement tax is created by section 142 of the Act which also quantifies the liability by saying that the advertisement tax is to be calculated at such rates not exceeding those specified in the Fifth schedule as the Corporation may determine. Section 142, thereforee, not only imposes the liability but also quantifies it when read with the Fifth schedule. If such liability is not discharged by non-payment of the advertisement tax which has become payable, the Corporation would certainly be entitled to employ coercive processes provided by section 154 to 162 of the Act. Merely because the Bye-laws provide for a notice by the intending advertiser and an intimation by the Commissioner determining the advertisement tax due does not mean that unless bye-law 6 is complied with, the advertisement tax is not payable. Sub section(2) of section 142 provides for determination by bye-laws only of the time or manner of payment of the amount of advertisement tax which has fallen due or has become payable under sub-secton (1) of this section. It is, thereforee, clear that if the advertisement tax is not paid although it has become payable, action can be 'taken for its recovery under the recovery sections of the Act, and, in addition, it is open to the Corporation to impose a penalty upon the advertiser for the breach of any of the bye-laws enumerated at the foot of bye-law 9. The remedy under the Bye-laws is independent of and in addition to the recovery sections of the Act. We, thereforee, do not find any force in this contention

(13) The next contention of the Palace Cinema is that the tax which has been imposed is not on the actual space on the screen used for the advertisements during the period in question

(14) On this question, the correspondence exchanged between the parties may be adverted to in greater detail. By letter dated June 29, 1964 (annexure 'A' to the writ petition), the Zonal Assistant Commissioner of the Corporation required the Palace Cinema to furnish details of advertisements exhibited by indicating (1) Seriall Number of the advertisement; (2) date of its exhibition; (3) subject matter of advertisement and (4) any other information relevant to the assessment of tax. This letter also enquired about the size of the screen in the cinema house. In reply by their letter dated July 10, 1964 (annexure 'B' to the writ petition) the Palace Cinema gave the requisite details as to the Seriall number and date of exhibition and as to the subject matter of advertisement and stated that they were 'advertisement filmlets' and 'slides' but they did not give any other information relevant to the assessment of tax. With respect to the size of the screen, they stated that the largest screen space used at any time for the purposes of the aforesaid advertisements was 625 square feet but for slides, it was very much less. However, the space utilized for slides was not indicated. Then, by notice of demand dated July 27, 1964 (annexure 'C' to the writ petition), the Corporation called upon the Palace Cinema to pay Rs. 13,500.00 calcultaed on the basis of a screen space of 625 square feet for the period commencing from April 1, 1959 to March 31, 1965. In reply to this letter, the Palace Cinema by their letter dated August 29, 1964 (annexure 'D' to the writ petition), stated that they had given the screen space as 625 square feet as in 1964; that this was not the space size up to December, 1962; that from 1959 up to the end of 1962, the largest screen space used at any time for the advertisement was 408 spuare feet and that the space area for the slide advertisement was only 154 square feet during this period up to the end of 1962. In this letter they also challenged the demand on the ground that the advertisement tax could not be levied unless permission as required under the Act and the Bye-laws was given by the Corporation. This last submission has already been dealt with by us earlier. As to the space, it is clear from this letter of the Palace Cinema that there is an admission that during the period April 1, 1959 up to the end of December, 1962, the largest screen space used at any time for advertisement was 408 square feet and subsequent to this period it was 625 square feet. The space actually utilized for advertisements was, thereforee, admitted to be 408 square feet up to the end of December, 1962 and 625 square feet thereafter. On receiving this communication, the Corporation assessed the advertisement tax for the period April 1, 1959 to December 20, 1962 on a screen space of 408 square feet at Rs. 5,355.00 and for the period December 21, 1962 to March 31, 1966, on the basis of screen space of 625 square feet at Rs. 7,560.00 and made a total demand of Rs. 12,915.00 thereby reducing the initial demand of Rs. 13,500.00. The Palace Cinema then filed the appeal under section 169 of the Act in the Court of the District Judge, Delhi.

(15) Along with their Civil Miscellaneous, the Palace Cinema have filed a certificate dated January 12, 1968 (anexure 'F' to the Civil Miscellaneous) from Cinefones (Delhi) Private Ltd., stating that the present screen in the Palace Cinema was fixed by them and it was of the size of 45' x20';. e. 900 square feet and that the simplex projector supplied by them to the Cinema was incapable of projecting a picture size of more than 625 square feet. They further certified that prior to December 22, 1962, the Palace Cinema had a screen size of 26'xl8' which could produce a picture image of not more than 348 square feet leaving the rest of the screen for masking etc. The certificate further certified that the space area for slide advertisement was only 154 square feet and the average screen space used for advertisement up to December, 1962 was 254 square feet and thereafter 389 square feet. In our view this certificate cannot help the Palace Cinema in view of the admission contained in their own representation wherein they stated that the screen space utilized, except for slides, was 408 square feet up to December, 1962 and thereafter it was 625 square feet. The Corporation accepted this admission and we cannot accept the letter stand taken by the Palace Cinema on the basis of the aforesaid certificate particularly in a petition under Article 227 of the Constitution. We, thereforee, hold that the Palace Cinema were correctly assessed on a screen space of 408 square feet up to December, 1962 and on a screen space of 625 square feet thereafter.

(16) The last question relates to the plea of the Palace Cinema that the claim for the period preceding March, 28, 1963 was barred by lime as. held by the learned Additional District Judge. The Corporation contends that the Limitation Act. does not apply as the demand which was created under section 154 of the Act does not attract the Limitation Act which prescribes limitation for suits and other proceedings and for purposes connected therewith. But it is not necessary for us to decide this question as even on the basis that the Limitation Act applies, the demand would not be barred by limitation as, admittedly, the demand for the period 1959 to 1963 would be governed by the Indian Limitation Act, 1908, which prescribes a period of six years under Article 120. The learned Additional District Judge was wrong in his conclusion that the demand was raised on March 28, 1966. In fact, the demand was raised by the letter of the Corporation dated July, 27, 1964 (annexure 'C' to the writ petition) claiming a sum of Rs. 13,500.00 for the period April, 1, 1959 to March 31, 1965 well within. the time prescribed by the Indian Limitation 'Act, 1908

(17) The real argument of the Palace Cinema is that section 455 of the Act provides a period of three years for the recovery of a demand made by the Corporation. This section is in these terms:-

'INany case not expressly provided for in this Act or any bye-law made there under any sum due to the Corporation on account of any charge, costs, expenses, fees, rates or renter on any other account under this Act or any such bye-law may be recoverable from any person from whom such sum is due as an arrear of tax under this Act: Provided that no proceedings for the recovery of any sum under this section shall be commenced after the expiry of three years from the date on which such sum becomes due.'

(18) There is no doubt that if the demand were in respect of any of the dues mentioned in this section, proceedings for recovery of any such sum could not be commenced after the expiry of three years of the date on which such sum became due and if advertisement tax is one of the dues mentioned in this section, the sum due for 1959, 1960 and 1961 only would be barred by time. Advertisement tax as such is not mentioned in section 455 but it is contended that 'rate' is a 'tax' and, thereforee, all taxes including advertisement tax are covered by section 455. 'Rates' used in this section do not include 'taxes.' This section provides that the dues mentioned in this section may be recovered 'as an arrear of tax under this Act. 'If 'taxes' are substituted for grates' in this section, the last part of the section would be rendered meaningless as a matter of construction. Further, there are express provisions in the Act for the recovery of taxes which are contained in sections 152 to 162 of the Act. The opening words of section 455 exclude the operation of this section in so far as taxes are concerned. Section 455 can apply only to sums due for charges and rates to supply water for non-domestic purposes (section 217); fees to place various things upon any street (section 321); charges or fees for removal of rubbish from factories etc. (section 356); fee for registration and control of dogs (section 399); fees and rents for levy of stallages (section 412) and various similar sections. Our conclusion is that the recovery of taxes which are and can be imposed by the Corporation under section 113 of the Act being provided for in sections 152 to 162 of the Act, is not covered by section 455 and, thereforee, the proviso fixing a period of three years for recovery cannot be called in aid to contend that the recovery of the advertisement tax for any period in this case is barred by time

(19) In the result, the writ petition filed by the Corporation is allowed and the order dated October 17, 1967, of the Additional District Judge, Delhi, in HTA. No. 218 of 1966 is quashed. The Civil Miscellaneous (Main) filed by the Palace Cinema is dimissed. There will be no order as to costs in any of these two matters and the parties will bear their respective costs


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