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CASE NO.: Appeal (civil)  5455 of 2007

PETITIONER: Amit Kumar

RESPONDENT: State of U.P. & Ors

DATE OF JUDGMENT: 28/11/2007

BENCH: C.K. Thakker & Altamas Kabir

JUDGMENT: J U D G M E N T  

CIVIL APPEAL NO. 5455     OF 2007 (Arising out of SLP(C) No.7731 of 2005)

Altamas Kabir, J.

1.      Leave granted.

2.      This appeal by way of Special Leave involves  the question as to whether entertainment tax was  payable by the appellant in respect of a fashion  show held at Gorakhpur in Uttar Pradesh on 9th July,  2000 at St. Andrews Inter College for the selection  of "Mr. Gorakhpur" and "Miss Gorakhpur".

3.      As it would appear from the materials on  record, the appellant was found to be the organiser  of the aforesaid fashion show which had been held  without the permission of the District Magistrate.   On the basis of enquiry, it was found that  entertainment tax had not been paid for performing  the aforesaid fashion show and accordingly a show  cause notice was issued to the appellant which was  replied to by the appellant.  Not being satisfied  with the explanation given, the District Magistrate  assessed a sum of Rs.43,270.00 by way of  entertainment tax for the programme and a further  sum of Rs.20,000.00 by way of penalty which was  imposed upon the Cambridge Intertia Group under  whose banner the appellant is said to have arranged  the fashion show.

4.      In his reply to the show cause notice dated 11th  July, 2000 under Section 12 of the Uttar Pradesh  Entertainment and Betting Tax Act, 1979  (hereinafter referred to as ‘the 1979 Act’), the  appellant contended that he was only a  choreographer of Cambridge Intertia Group which  arranged the programme.  The appellant contended  that the programme, as arranged, did not attract  the provisions of the aforesaid Act and that the  show cause notice was without jurisdiction.  A  specific stand was also taken that Section 5 of the  1979 Act provided that any programme relating to  entertainment could not be held without prior

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permission but that since the programme was not  entertainment within the meaning of the Act, the  same had been held by the Institution with prior  intimation to the office of the District  Magistrate.  It was reiterated that the programme  was of a competitive nature and there was no  element of entertainment involved.  Furthermore,  neither was any cultural, music and dance programme  conducted nor was any amount collected from the  spectators by way of entry fee.  According to the  appellant, the show was organised as a charity show  with the specific purpose of publicising the event,  inasmuch as, there was a proposal initiated by Ms.  Neetu Nathaniel (Respondent No. 7 herein) for  establishing an Institute of Art, Fashion Designing  and Modelling at Gorakhpur in collaboration with  the Respondent No. 8, Smt. S. Mishra, proprietor of  the Cambridge Intertia Group.

5.      Another stand taken by the appellant in the  reply to the show cause notice was that Miss Neetu  Nathaniel was the Director and Smt. S. Mishra was  the Convener of the show and that the entire  programme had been conducted under the direction of  Miss Neetu Nathaniel.  In his reply, the appellant  requested the District Magistrate to issue notice  to Miss Neetu Nathaniel who could enlighten him as  to the alleged collection of money against tickets  sold and funds collected from the organisers.   Since the appellant was only a Choreographer and  his main function was to provide information about  the candidates participating in the programme, he  denied that he had been involved with the holding  of the programme other than  as a Choreographer for  the show.   

6.      As mentioned hereinabove, by his order dated  24th July, 2000 the District Magistrate, Gorakhpur  did not accept the explanation offered by the  appellant and also the contention that Miss Neetu  Nathaniel was, in fact, the Director of the  programme with Smt. S. Mishra as the Convener.  The  District Magistrate chose to rely on the report  submitted by his Department as to the collection of  entry fee from the spectators and funds from the  organisers.  Reference was also made to other shows  of similar nature held in Gorakhpur where fashion  shows had been held after depositing the  entertainment tax payable in respect thereof and  after obtaining the permission of the District  Magistrate.  Rejecting the explanation offered by  the appellant, the District Magistrate came to the  conclusion that the appellant had collected a total  sum of Rs.1,62,500.00 from the spectators and a  further sum of Rs.25,000.00 from the five  organisers at the rate of Rs.5,000/- from each  organiser.  It was on that basis that a demand was  raised by way of entertainment tax for Rs.43,270.00  at the rate of 30% on the total collected amount of  Rs.1,87,500.00.

7.      The appellant challenged the said order of the  District Magistrate by way of Civil Misc. Writ  Petition No. 2166/2002 in the Allahabad High Court.   The same was taken up for disposal on 22nd February,

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2005 and on behalf of the writ-petitioner/appellant  herein, it was sought to be reiterated that the  writ-petitioner/appellant was only the  Choreographer and had no function in holding the  fashion show.  It was also urged that the programme  in its entirety was charitable in nature and being  for an educational purpose, was exempted under  Section 11(3) of the 1979 Act.

8.      Negating the claim of the writ- petitioner/appellant, the High Court held that a  fashion show could not be said to be in aid of  education and was only meant to entertain the  public.  On the said finding, the Allahabad High  Court dismissed the writ petition against which the  appellant filed SLP(C) No. 7731 of 2005 wherein  leave has been granted. 9.      Mr. Rameshwar Prasad Goyal, learned Counsel  appearing for the appellant, reiterated the  submission which had earlier been made before the  District Magistrate and the High Court and  submitted that the fashion show being merely  competitive in nature and being organised for the  sake of publicity in connection with the proposed  establishment of an Institute of Art, Fashion  Designing and Modelling by the Cambridge Intertia  Group, the provisions of the 1979 Act were not at  all attracted and the show cause notice which had  been issued by the District Magistrate was without  jurisdiction or in excess of the jurisdiction  vested in him under the Act.   

10.     Mr. Goyal urged that both the District  Magistrate as also the High Court had wrongly  arrived at the conclusion that the appellant was  responsible for organising and holding the fashion  show.  He reiterated the submission made earlier  before the other authorities that it was the  Respondent Nos. 7 and 8 who were the real  organisers and convener of the fashion show and the  liability of entertainment tax, if any, had been  wrongly foisted upon him.

11.     On behalf of Respondent Nos. 1 to 6, it was,  however, submitted by Mr. S.K. Dviwedi, the  Additional Advocate General for the State of U.P.,  that the submissions made on behalf of the  appellant would be disproved on a perusal of the  advertisement which was published on the occasion,  being Annexure CA-2 of the Counter Affidavit filed  on behalf of the Respondent Nos. 1 to 5.  Mr.  Dviwedi submitted that from the said advertisement  it would be clear that while Cambridge Intertia  Group as an Institute of Art, Fashion Designing and  Modelling was presenting the fashion show, the  Respondent No. 7 was the Director, the Respondent  No. 8 was the Programme Manager and the appellant  was the Programme Director and Choreographer on the  occasion which was to be attended by a Minister of  the State Government together with various persons  shown as the sponsors of the programme. 12.     Mr. Dviwedi also submitted that since the  Minister was the Chief Guest at the fashion show,  various arrangements had been made so that the  programme could be conducted safely and without any

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disturbance. Furthermore, one of the sponsors shown  in the advertisement, namely, Mr. Pradeep Tekriwal,  had specifically written to the authorities  informing them that he was neither a sponsor of the  programme nor did he have anything to do with the  programme including making any monetary  contribution.

13.     Mr. Dviwedi submitted that both the District  Magistrate and the High Court had rightly held that  the stand taken on behalf of the appellant that the  fashion show was merely a charity show was not  tenable and it had been rightly held that the same  was for the purpose of entertainment and that large  sums of money had been collected from the  spectators on the occasion. Mr. Dviwedi also  submitted that despite the efforts of the appellant  to shift the liability of payment of the  entertainment tax demanded by the Respondent Nos. 7  and 8, it had been established that it was the  appellant who had master-minded the show with the  full knowledge that the same was being held for the  purpose of entertainment and that entertainment tax  was payable in respect thereof under the 1979 Act.

14.     Mr. Dviwedi submitted that no case had been  made out on the appellant’s behalf for interference  with the orders passed by the District Magistrate  which were upheld by the High Court.

15.     We have carefully considered the submissions  made on behalf of the respective parties and we are  inclined to agree with Mr. Dviwedi that the fashion  show was held with full knowledge that  entertainment tax was payable in respect thereof  and that though tickets may not have been issued in  respect of the programme and only invitation cards  had been issued, the same was merely a subterfuge  for the purpose of evading and/or avoiding payment  of entertainment tax.  It is difficult to believe  that the fashion show was held with the object of  educating prospective students who would be  interested in joining the Institute of Art, Fashion  Designing and Modelling and was, therefore, exempt  under Section 11(3) of the 1979 Act.  As the  advertisement referred to above indicates the  object of the show was to invite people to come and  watch the new world of glamour and modelling and to  see the world of exotic fashion in Gorakhpur  itself.   

16.     We, therefore, see no reason to interfere  with the order passed by the District Magistrate,  Gorakhpur and the High Court and we have no  hesitation in dismissing the appeal, but there will  be no order as to costs.

17.     While parting with the appeal, however, we  cannot but remark upon some of the statements made  in the Writ Petition filed by the appellant before  the High Court, particularly those made in  paragraphs 11 and 13 which, in our view, had little  or no relevance to the issue involved in the  present appeal.