2004 PLP 567 (SCMR)

Sr.No. 1 Admission to recreational parks, amusement parks, fun lands and other similar (a) No duty for the first two years of the functioning of such entertainments; (b) ten per cent. of the payment for , admission during the next ten years, and 2 Stage drama Fifty per cent. of the payment for admission. 3 Admission to horse racing. Hundred per cent. of the payment for admission.

5. Subsequently, section 3‑A was omitted by Punjab Finance Ordinance, 2000. The, question arose whether after the omission of the said section 3‑A, entertainment duty could be charged on the chair‑lift project of the petitioner. The case of the respondent was that it continued to be leviable under section 3 of the original Act after, omission of section 3‑A as it was being levied before the said section was added:

6. The act of the respondent of its insistence to charge the entertainment duty from the petitioner was challenged by filing Constitutional petition in the Lahore High Court, Rawalpindi Bench which has been dismissed through the impugned judgment dated 30‑9‑2003 against which leave is sought.

7. It has been held that though the duty was charged from the petitioner from 1992 under section 3‑A as added by Punjab Finance Act, 1992 but after the omission of the said section through Punjab Finance Ordinance, 2000, the same was chargeable under section 3(l) of the original Act.

8. It appears that the intention behind addition of section 3‑A' in the original Act through Punjab Finance Act, 1992 was to bring entertainments mentioned therein as a class within the purview of the Act to charge entertainment duty which were not included in section 21d) of the original Act. After the omission of section 3‑A, the entertainment duty would not be chargeable only on those entertainments as a class which were introduced through the said amendment and the entertainments originally falling within the purview of section 2(d) would continue to be liable for payment of entertainment duty:

9. Learned counsel for the petitioner argued that since the High Court has held in the impugned judgment that entertainment duty was being charged from the petitioner under section 3‑A added through Punjab Finance Act, 1992, therefore, after omission of the said section, subsequently no entertainment duty could legally be charged against the petitioner and the subsequent findings that the same could be charged under the original Act are inconsistent with the previous findings that it was chargeable under section 3(1) or the Act.

10. Learned Assistant Advocate‑General has brought, to our notice that the assumption of the High Court that the entertainment duty was charged from the petitioner under section 3‑A is not correct. She has produced before us a notification dated 12‑1‑1995 whereby entertainment duty was exempted for a period of two years on entertainments and thereafter the rate on entertainment duty was reduced which the petitioner continued to avail. It was not a concession granted to the petitioner under section 3‑A as added through Punjab Finance Act, 1992 in which it was also provided that on the entertainments mentioned therein, there will be no duty for two years and thereafter the same was recoverable at different reduced rates.

11. Learned counsel for the petitioner when questioned on instructions admitted that right from 1988 when this chair‑lift was established by the petitioner, the duty had continuously been levied up to 1992 at the rates fixed under the Act and thereafter at reduced rate which according to learned counsel was under section 3‑A whereas according to learned Assistant Advocate-General, it was as under the said notification issued under section 8 of the Act.

12. The question of interpretation of sections 2(d), 3(1) of the West Pakistan Entertainments Duty Act, 1958, section 3‑A added through Punjab Finance Act, 1992 and the legal consequence of their omission by Punjab Finance Ordinance, 2000 and the notification of 1995 produced by the learned Assistant Advocate‑General has risen' which is undoubtedly a question of law of public importance, therefore, we would grant leave to appeal.

13. The appellant has also filed application for ‑staying the recovery of the entertainment duty. Subject to furnishing bank guarantee in respect of the amount due as arrears of entertainment, duty uptil today within one month from today to the satisfaction of the Registrar of this Court which on submission shall be accepted after hearing the representative of D.G., E & T, Lahore, the recovery of the arrears shall remain stayed. The levy and recovery of entertainment duty hereinafter is not stayed. Both the parties are directed to maintain the accounts, of the recoveries about which appropriate order shall be passed at the time of final disposal of the appeal. M.B.A./P‑3/S Leave granted.