P L D 1960 Supreme Court (Pak (PLP)

MUHAMMAD MUNIR, C. J.‑This is a certified appeal from the appellate decree of a Division Bench of the High Court of West Pakistan, affirming the decree of a Single Judge dismissing a suit. In exercise of the powers conferred on it by section 96, subsection (2) (d) of the City of Karachi Municipal Act, the Corporation of the City of Karachi imposed a tax of Rs. 10 per show on all cinemas and theatres in the City of Karachi. Muhammad Nurullab appellant who runs a cinema in the city challenged the validity of this tax by a suit against the Corpora tion, instituted on the Original Side of the Karachi Bench of the High Court. The suit was dismissed by Inamullah, J., and on appeal the decree was affirmed by Rahman, C. 'J. and Waheeduddin, J., but the case was certified by them to be a fit one for appeal to this Court because it involved a question as to the interpretation of the Government of India Act, 1935. Having heard Mr. Sharifuddin against the judgment of the High Court we find ourselves entirely in agreement with that judgment and the reasoning on which it proceeds, and see no substance in the appeal. The issue is whether the tax in question is a tax on entertainment or amusement falling within Item 50, List II, or whether it is a tax on income, profession or calling within the meaning of Item 54 of List I, or a tax on profession, trade, calling or employment within the purview of Item 46 of List II, of the Seventh Schedule to the Government of India Act, 1935, so as to come within the prohibition of section 142‑A of that Act. The principle governing determination of the question whether a matter falls within one Item or another of the various Lists to the aforesaid Schedule is well‑established, and that is, that what has to be looked at is the pith and substance of the impugned legislative measure. Here the tax is on each cinema show, regardless of the income from the show and irrespective of what the profession or calling of the person on whom the incidence of the tax falls is. The tax therefore in substance is a tax on entertainment or amusement. Item 50 is silent on the question as to who is to pay the tax in the first instance or ultimately. The tax is therefore leviable as much on the person who is entertained or amused as on the person who provides the entertainment or amusement. The mere fact that in some analogous jurisdictions the policy of the legislature has been to levy the tax on the persons admitted to entertainment or amusement, assuming such is the unvaried practice, is no ground for the Court to limit the meaning of the words used by the legislature or to qualify the text by adding to it words‑ which are not to be found there. In the same manner, the tax is not on any trade, the only taxable subject in item 46 relied on in the arguments, because thee tax is equally leviable whether the motive of the exhibitor be' profit or not. In our judgment the issue was rightly decided in the High Court and this appeal must be dismissed with costs. Order accordingly. A. H. Appeal dismissed.