# Anandi Water Park Resorts And Club Pvt. Ltd v. State of U.P

- **Citation:** (2022) 10 ILRA 126
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-10-21
- **Case number:** Writ-C No. 14359 of 2019
- **Bench:** Pankaj Bhatia
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/anandi-water-park-resorts-and-club-pvt-ltd-v-state-of-u-p-47692
- **Pages:** 5

## Headnote

A. Tax Law - Constitution of India -
Article 265 - UP Entertainment and
Betting Tax Act, 1979 - Sections 2(l) (iii)
& 12 - Entertainment tax - It's imposition
on the costume used in the water park -
Legality challenged - Held, the costume
used in the water park would neither fall
within the definition of words 'instrument'
or
'contrivance'
-
The
renting
on
'costumes' cannot be included in the term
'payment for admission' as defined under
Section 2(l) - Held further, the tax can be
levied only when specially provided for
and not by intendment - Assessment
order was held beyond the authority of
law and is violative of Article 265 of the
Constitution of India. (Para 15 and 16)
Writ petition allowed. (E-1)

## Text

126 INDIAN LAW REPORTS ALLAHABAD SERIES
conferring jurisdiction upon respondent no.
3
to
act
as
appellate
authority.
Consequently, the direction of this Court
has to be construed in the light of the above
settled legal position.

14. Accordingly, in our opinion, even
if we assume that the representation dated
17.9.2019 was an appeal preferred before
respondent no. 2, as is sought to be
contended,
it
was
not
maintainable.
Moreover, the Appellate Authority as well
as Apar Mukhya Adhikari, Zila Panchayat,
Bijnore, have considered the plea of the
petitioner on merits and have held that the
petitioner is already having separate
passage for ingress and egress to her house
from a lane on the northern side of the wall
of Dak Bungalow and that she does not
have any right of passage through the Dak
Bungalow.

15. We find no illegality or perversity
in the said finding to warrant interference
in exercise of writ jurisdiction.

16. The petition is accordingly
dismissed.
----------
(2022) 10 ILRA 126
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 21.10.2022

BEFORE

THE HON'BLE PANKAJ BHATIA, J.

Writ-C No. 14359 of 2019

Anandi Water Park Resorts And Club Pvt.
Ltd. ...Petitioner
Versus
State of U.P. ...Respondent

Counsel for the Petitioner:
Apoorva Tewari, Aditya Tewari
Counsel for the Respondent:
C.S.C.

A. Tax Law - Constitution of India -
Article 265 - UP Entertainment and
Betting Tax Act, 1979 - Sections 2(l) (iii)
& 12 - Entertainment tax - It's imposition
on the costume used in the water park -
Legality challenged - Held, the costume
used in the water park would neither fall
within the definition of words 'instrument'
or
'contrivance'
-
The
renting
on
'costumes' cannot be included in the term
'payment for admission' as defined under
Section 2(l) - Held further, the tax can be
levied only when specially provided for
and not by intendment - Assessment
order was held beyond the authority of
law and is violative of Article 265 of the
Constitution of India. (Para 15 and 16)
Writ petition allowed. (E-1)

(Delivered by Hon'ble Pankaj Bhatia, J.)

1. Heard Sri Aditya Tewari, learned
Counsel for the petitioner and Sri Rajesh
Kumar Shukla, learned Counsel appearing
on behalf of the State.

2. The present petition has been filed
challenging the order dated 31.08.2010
whereby
the
entertainment
tax
of
Rs.3,17,378.04/- was imposed in exercise of
powers conferred under Section 12 of The
Uttar Pradesh Entertainment and Betting Tax
Act, 1979 (hereinafter referred to as "The
1979 Act") along with penalty of Rs.20,000/-.
The petitioner also challenges the order dated
21.01.2016 whereby the statutory appeal
preferred by him was rejected as well as the
order
dated
30.03.2017
whereby
the
application for recall of the appellate order
was also rejected.

3. The facts in brief are that the
petitioner is a Company incorporated under
10 All. Anandi Water Park Resorts And Club Pvt. Ltd. Vs. State of U.P.
127
The Companies Act, 1956 and is a
Proprietor of a water park situate at
Faizabad Road, Lucknow and runs a water
park in the said premises in accordance
with the permission obtained from the
requisite authorities.

4. The contention of the Counsel for
the petitioner is that the entertainment tax
levied on the water park was exempted vide
order dated 22.05.1998, however, the said
issue need not detain us as the issue in the
present case arises out of a survey
conducted at the premises of the petitioner
on 21.04.2010 and on the basis of the said
survey, a show cause notice was issued to
the petitioner on 05.05.2010 stating therein
that on the date of the survey as conducted
at the premises, on an inquiry, it was found
that Rs.30/- per male and Rs.60/- per
female was being charged towards costume
and despite notice, the assessee has not
come forward to disclose the said fact. It is
further stated that the costume would also
be subject to levy of entertainment tax in
view of the provisions contained in Section
2(l)(iii) of the 1979 Act, thus it was
proposed in the said show cause notice as
to why the assessment may not be done at
Rs.3,17,378.04/-
and
a
penalty
of
Rs.20,000/- may not be imposed.

5. The petitioner preferred a reply to
the said show cause notice denying all the
allegations and also requesting that the
petitioner may be provided with the copy of
the survey report, proposed to be relied
upon against the petitioner during the
course
of
assessment
proceedings,
however, without giving any opportunity of
hearing and without providing the said
survey report, an order came to be passed
on 31.08.2010. Assessing the entertainment
tax on the renting of the costume at
Rs.3,17,378.04/- and further a penalty of
Rs.20,000/-
was
imposed
upon
the
petitioner in purported exercise of powers
under Section 12 of the 1979 Act. The
petitioner preferred an appeal against the
said order and took specific ground with
regard to the non-providing of the survey
report, however, the appeal was dismissed
without granting opportunity of hearing and
ex-parte in the absence of the petitioner.
The petitioner preferred an order recall
application which too was dismissed. The
said three orders are under challenge before
this Court.

6. The contention of the Counsel for
the petitioner is that very foundation for
charging entertainment tax on the 'costume'
as alleged against the petitioner is wholly
illegal, inasmuch as, in terms of the
mandate of Section 2(l)(iii) of the 1979
Act, the costume would not come within
the meaning as described, as such, very
foundation based upon which the order has
been passed is without any authority of
law. He further argues that the petitioner
had opened a separate counter at the park
and has authorized a special contractor to
give costumes on rent to whosoever desires
and the said facility was not being managed
by the petitioner and thus the petitioner was
in any case not liable.

7. The Counsel for the petitioner
further argues that taking of the costume
was voluntary and was not a part of the
'payment for admission' and thus, the
petitioner cannot be made liable even if for
the sake of argument, all the allegations are
treated to be correct. He further argues that
the manner in which the quantum has been
fixed is wholly arbitrary, inasmuch as, it is
common knowledge that in winter months,
the water park remains closed whereas the
assessment has been made for the period
13.03.2009 to 21.04.2010 which is contrary
128 INDIAN LAW REPORTS ALLAHABAD SERIES
to
the
powers
conferred
upon
the
authorities under Section 12 of the 1979
Act. He specifically refers to the manner in
which the said powers are to be exercised
on the basis of best judgment assessment.
He
argues
that
the
'best
judgment
assessment' is to be interpreted in the light
of the materials which are existent and
cannot confer arbitrary exercise of powers
on the authorities and in the present case,
the manner in which the assessment has
been done would not qualify as 'best
judgment assessment'. The Counsel for the
petitioner
further
argues
that
even
otherwise in terms of the mandate of
Section 12 of the 1979 Act, it is incumbent
that an opportunity of hearing be granted
prior to passing of the order which has not
been done. He further argues that the entire
assessment has been done based upon one
survey which is neither a proper exercise of
power nor does it give any indication to
come to the conclusion with regard to the
quantum of tax due. He places reliance on
the specific averments regarding not
providing an opportunity of hearing made
in the writ petition which have not been
denied in the counter affidavit and thus it is
argued that the writ petition is liable to be
allowed.

8. Learned Standing Counsel, on the
other hand, argues that the survey was
conducted
at
the
premise
of
the
petitioner. He further refers to an earlier
survey conducted on 05.08.2009 wherein,
as per the said survey the petitioner had
accepted the charging of Rs.30/- per
costume per male and Rs.60/- per
costume per female. In the light of the
said, he thus argues that the authorities
has not exceeded its jurisdiction to access
in terms of the mandate of Section 12 and
thus argues that the writ petition is liable
to be dismissed.

9. On the basis of the submissions
made at the bar this Court is to consider the
scope of Section 2(l)(iii) of the 1979 Act
and as to whether the orders impugned
which are without any opportunity of
hearing, satisfies the tax under Section 12
of the 1979 Act?

10. To consider the first submission
that the charge of costume would not fall
within the definition of Section 2 (l)(iii) of
the 1979 Act. It is essential to produce
Section 2(l)(iii), which is as under:

"(l). 'payment for admission'
includes -

(i) ...

(ii) ...

(iii) any payment made for the
loan or use of any
instrument or
contrivance which enables a person to get
a normal or better view or hearing or
enjoyment of the entertainment, which
without the aid of such instrument or
contrivance such person would not get."

11. The payment for admission,
includes any payment made for loan or use
of any 'instrument' or 'contrivance' which
enables a person to get a normal or a better
view or hearing or enjoyment of the
entertainment which without the aid of
such instrument or contrivance such person
would not get. Thus to include any amount
under Section 2(l)(iii), it is essential that
there should be a use of 'instrument' or
'contrivance' which enables the person to
use the benefits and without which such
entertainment or enjoyment is not possible.
A costume used in the water park, as stated
by the Counsel for the petitioner, is
provided to the persons who wants to take
it on rent. There is no material on record to
suggest that the costumes would be an
'instrument' or 'contrivance'. Further there
10 All. Anandi Water Park Resorts And Club Pvt. Ltd. Vs. State of U.P.
129
is no material to state that such costume
enhances the enjoyment of the persons to
enjoy the entertainment of water park and
further there is no material on the record to
state that without such costume being
provided, the person entering into the water
park would not in a position to enjoy the
entertainment.

12. The words 'instrument' or
'contrivance' have not been defined
under the Act, as such, the dictionary
meaning of the said two words is to be
resorted to. The Cambridge Dictionary
defines the word 'Contrivance' as "the
act
of
intentionally
arranging
for
something to happen by clever planning,
or something that is arranged in this
way" and "a clever device or object that
has been invented for a particular
purpose".

13. Similarly the 'Instrument',
which has not been defined under the
Act, under the Cambridge Dictionary, it
is defined as "an object such as a piano,
guitar, or drum, that is played to
produce musical sounds" or "a tool or
other device, especially one without
electrical power, used for performing a
particular piece of work" and also
defines the ''Instrument' as "a way of
achieving or causing something".

14.

In
The
Oxford
English
Dictionary,
the
word
'Contrivance'
defines as "the action of contriving or
ingeniously
endeavouring
the
accomplishment
of
anything;
the
bringing to pass by planning, scheming,
or stratagem; maneuvering, plotting;
deceitful
practice'.
In
the
said
dictionary, the word 'Instrument' reads
as "that which is used by an agent in or
for the performance of an action; a thing
with or through which something is done
or effected; anything that serves or
contributes to the accomplishment of a
purpose or end; a means.

15. In the present case, the costume
used in the water park would neither fall
within
the
definition
of
words
'instrument' or 'contrivance', thus I am
inclined to accept the submission of the
Counsel for the petitioner that the
renting on 'costumes' cannot be included
in the term 'payment for admission' as
defined under Section 2(l), thus on that
score alone, the assessment order is
beyond the authority of law and is
violative
of
Article
265
of
the
Constitution of India.

16. It is well settled that the tax can
be levied only when specially provided
for and not by intendment. If the
legislation was of the view that the
renting of the costume should be
included
for
the
purpose
of
determination of the taxes, it could have
specifically provided for under the Act
which has not been done, thus, I have no
hesitation in holding that demand of levy
of tax as well as the penalty is without
authority of law.

17. I am not going into the second
question as I have already held that levy
itself is without authority of law.

18. Accordingly, the writ petition
stands allowed. The impugned orders
dated
31.08.2010,
21.01.2016
and
30.03.2017 are set aside.

19. The amount deposited by the
petitioner as pre condition of appeal
shall be refunded to the petitioner within
a period of three months from today.
130 INDIAN LAW REPORTS ALLAHABAD SERIES
----------
(2022) 10 ILRA 130
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 05.09.2022

BEFORE

THE HON'BLE JAYANT BANERJI, J.

Writ-C No. 15295 of 2022

C/M Sri Malviya Inter College & Anr.
 ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Alok Dwivedi

Counsel for the Respondents:
C.S.C., Yogesh Kumar Saxena

A. UP Intermediate Education Act, 1921 -
Committee of Management - Single
operation - Principle of natural justice -
No notice was given before order of
single operation - Validity challenged -
Opportunity of hearing, how far can be
claimed - Tenure of three years providing
under
un-amended
Scheme
of
Administration was expired - Effect -
Held, in addition to demonstrating breach
of natural justice, proof of prejudice is
also to be demonstrated - The petitioner
having no right to continue beyond the
period of three years, is no longer
entitled to continue as Manager of the
Committee of Management - Though
notice may not have been given to the
petitioners prior to issuance of the
impugned order of single operation of the
account, no prejudice has been caused to
them. (Para 18 and 22)
Writ petition dismissed. (E-1)
List of Cases cited:-
1. Committee of Management Saltnat Bahadur
Post Graduate College, Badlapur, Jaunpur & anr.
V. St. of U.P. & ors.; 1 2013 (5) ADJ 326(FB)
2. Committee of Management, Janta Higher
Secondary School & anr. Vs St. of U.P. & ors.;
2013(1) ADJ 300
3. Committee of Management, Janta Inter
College, Jaitpur Kalan, District Agra & anr. Vs St.
of U.P. & ors.; 2021 (12) ADJ 235
4. Committee of Management, Janta Inter
College & anr. Vs St. of U.P. & ors.; 2014 (1)
ADJ 111
5. Aligarh Muslim University & ors. Vs Mansoor
Ali Khan;(2000) 7 SCC 529
(Delivered by Hon'ble Jayant Banerji, J.)

1. Heard Sri Alok Dwivedi, learned
counsel for the petitioner and the learned
Standing
Counsel
appearing
for
respondents.

2. Sri Yogish Kumar Saxena, learned
counsel states that he had filed a caveat
application on 17.5.2022 on behalf of the
President
of
the
Committee
of
Management.

3. Background of the case are that the
petitioner's institution is recognised under
the U.P. Intermediate Education Act, 1921
and the Rules and Regulation framed
thereunder. The institution is under grantin-aid list of the State Government and
payment of salary of its teachers and
employees is being made under the
provisions of the U. P. High School and
Intermediate Colleges (Payment of Salaries
of Teachers and other Employees) Act,
1971.

4. There is an approved scheme of
administration and thereunder, the election
of the Committee of Management of the
institution was duly held on 25.4.2018, in
which the petitioner no.2 was elected as
Manager of the institution. The Inspector,
Kanput Dehat had recognized this election
and attested the signatures of petitioner