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Judgment
Dr. D.Y.Chandrachud, J.—The Petitioner seeks to challenge the constitutional validity of the Bombay Entertainment Duty (Amendment ) Act 2010 more specifically the provisions of Section 3(11A) which were inserted by the amendment. As a result of the amendment, clause (11A) has been inserted into the provisions of Section 3 to the following effect :
(11A) Notwithstanding anything contained in clause (b) of sub- section (1) or in any other provisions of this Act, there shall be levied and paid in advance, by the tenth day of every calender month, by the proprietor of every permit room or beer bar with live orchestra, the entertainment duty in respect of entertainment in such permit room or beer bar with live orchestra, to the State Government, at the rates specified in the Table below :-
Serial
No.
(1)
Area
(2)
Amount of
entertainment duty
in permit room or
beer bar with live
orchestra, per
month (in rupees)
(3)
1.
Within the limits of all Municipal
Corporations
50,000
2.
All other area not covered by entry
1 25,000�
The submission of the Petitioner is that this violates their fundamental right under Article 19(1)(g) of the Constitution. Moreover, it has been urged that since the performance licence which is granted to the Petitioner is subject to the payment of a fee of Rs. 500/- per day, consequently the imposition of an entertainment duty would amount to double taxation.
As regards the first submission, the impugned measure is a fiscal measure imposed by the State legislature in the exercise of its legislative power. There is no challenge to the legislative competence of the State legislature to enact the law. The right of the Petitioner to carry on business under Article 19(1)(g) is not infringed. The fundamental right to carry on business has to be exercised in accordance with law and is subject to the payment of fiscal impositions which the competent legislature may impose. Similarly, there is no merit in the submission that double taxation would result as a consequence of the impugned levy. The State Government is entitled to recover a fee on performance licenses. The subject of the tax u/s 3(11A) is upon the entertainment which is provided in a permit room or beer bar with a live orchestra. No material has been produced before the Court to indicate that the duty of Rs. 50,000/- which is chargeable in respect of establishments within the limits of Municipal Corporations is expropriatory. In these circumstances, we do not find any merit to the constitutional challenge to the legislative provision.
The Petition is dismissed. However, on the request of the learned counsel we clarify that this would not preclude the Petitioner from pursuing the representation which is stated to have been made to the competent authority.