MEDAPA, CJ. ( 1 ) THE petitioners in these two petitions are professional exhibitors of cinema shows one in Super Talkies, Bangalore city, and the other in New Opera Talkies and New Imperial talkies in Civil Station, Bangalore A Show Tax of Es. 10 per each show has been levied on each of them under Section 3 of the mysore Cinematograph Shows Tax Act, 1951 (Mysore Act No. XVI of 1951 ). This tax is in addition to the entertainment tax leviable under the Mysore Amusements Tax Act, 1932 (Mysore act No. VIII of 1932 ). The petitioners contend that the mysore Cinematograph Shows Tax Act (Mysore Act No. XVI of of 3951) is ultra vires of the powers of the State Legislature and pray for the issue of a writ of prohibition or other appropriate writ against the respondents prohibiting them from collecting the tax under the Mysore Cinematograph Shows Tax Act and for a direction to declare the said Act ultra vires of the powers of the local Legislature. The grounds on which Act XVI of 1951 is impugned are" (1) that the tax leviable under the said Act is in reality a tax on income regarding which the State Legislature has no power to impose a tax ; (2) that the petitioners have been subjected to double taxation one under the Act of 1932 (The Mysore Amusements tax Act) and the other under the present Act (The Mysore cinematograph Shows Tax Act) and is therefore against the constitution; (3) that the tax in question does not fall under entry 62 of list II of the Seventh Schedule to the Constitution, viz. , "taxes on luxuries, including taxes on entertainments, amusements, betting and gambling", regarding which the State Legislature has power to impose a tax but clearly falls under entry 60 of List II of the Seventh Schedule, viz. , " Taxes on professions, trades, callings and employments " which is governed by Article 276 of the Constitution ; and (4) that the Government has absolute powerb under section 5 of the Act to exempt any Cinematograph show or shows from payment of the tax and is therefore hit by Article 14 of the constitution. " ( 2 ) THE contention that the tax in question is a tax on income may first be considered. " ( 2 ) THE contention that the tax in question is a tax on income may first be considered. The argument of the learned counsel for the petitioners is that the tax leviable under this Act cannot be and was not intended to be passed on to the person seeking and receiving entertainment but is meant to be taken out of the pocket of the petitioners and that therefore it is really a tax on income. Ho pointed out that the imposition of a tax on income is governed by the provisions of Articles 246 and 270 read with List I in the seventh Schedule to the Constitution and that the State legislatures have no power to impose a tax on income. It is urged that the State Government, in the guise of a levy under the Show Tax, is seeking to entirely eliminate the income of the petitioner and that in consequence the express intention of the constitution to earmark the taxes on income to the Union government is defeated. The learned Advocate-General for the respondents submits that the contention of the petitioners that show Tax is a tax on income in disguise, is untenable. He relied on the very submission of the learned counsel for the petitioners that the tax may have to bo and has in fact been paid even-though the petitioner has earned no income or profit but has actually suffered a loss, in support of his submission that the tax in question is not and cannot be deemed to be a tax on income. ( 3 ) HIS argument is that a tax on a person, whether that person makes a profit or loss, can never be deemed to be a tax on income. There is good deal of force in this contention. The decision in mathurai v. State of Madras, A. I. R. 1954 Mad. 569, though not quite appropriate, has in it observations which lend full support to this view. In that case a tax on "passengers and goods carried by roaf. " which under the provisions of the Act had to come out of the pocket of the proprietors of buses and could not be passed on to the passengers was held to be not a tax on the income of the proprietors. In that case a tax on "passengers and goods carried by roaf. " which under the provisions of the Act had to come out of the pocket of the proprietors of buses and could not be passed on to the passengers was held to be not a tax on the income of the proprietors. The tax uader the Mysore Cinematograph Shows tax Act (Mysore Act No. XVI of 1951) cannot be held to be a tax on income and is therefore not hit by the provisions of articles 246 and 270 read with List I in the Seventh Schedule to the Constitution. ( 4 ) THE second contention of the learned Counsel for the petitioners is that the petitioners have been subjected to double taxation and that therefore the Act is ultra vires of the Constitution. Our attention was drawn to certain passages in Findlay shirras, book "science of Public Finance" 1936 Edition, regarding the principles that should govern taxation, but we are not concerned with the principles that should guide or govern the legislatures in their taxation policy but with the interpretation of the powers of the Legislatures according to the Constitution. The learned counsel has not referred us to any Article of the constitution, nor am I aware of any provision in the Constitution, which prevents or prohibits double taxation. This point arose for consideration in Cantonment Board, Poona v. W. I. ( 5 ) THEATRES, A. I R. 1954 Bom. 261 wherein it was held"there is nothing in the Constitution which prevents double taxation being levied. Instances are not wanting in this country in which taxes are levied twice upon the same thing, once for the benefit of the State Government and in the second instance for the benefit of the Local Self-Government bodies, for example, The District Local Board or the Municipality. "the contention is therefore negatived. ( 6 ) THE real point for consideration in these cases is whether the tax leviable under the Mysore Cinematograph Sbows tax act (Mysore Act No. XVI of 1951) is a tax on entertainment falling under entry 62 of List II of the Seventh Schedule to the Constitution, as contended by the learned Advocate-General, or is a tax which falls legitimately and properly under entry 60 of List II of the Seventh Schedule to the Constitution. The contention of the learned Advocate-General is that it is a tax on entertainment and is therefore within entry 62 of the Seventh schedule and that as such the State Legislature was competent to pass the enactment in question. It has been pointed out earlier that the tax has to be paid by the proprietors and it will be an unwarranted strain on the meaning of the word " entertainment " to say that the proprietor, who pays a tax even when he incurs loss, gets entertainment from the loss incurred by him as a result of the show or , from the show. The show of the pictures certainly affords entertainment to the persons who obtain entrance to the theatre and see the pictures but the petitioners exhibit pictures to earn money and not to obtain entertainment. It certainly cannot be said that the losses they incur by exhibiting the pictures afford them any entertainment. The Mysore amusements Tax Act of 1932 is clearly and admittedly a tax on entertainment and if the intention of the Legislature was to increase the tax leviable on cinema entertainment, the natural course would have been to enhance the rate by an amendment to that Act to enable a higher tax being imposed and collected. ( 7 ) THIS has not been done. The preamble to the present Act specifically sets out that the tax contemplated therein is a tax in addition to the entertainment tax. It therefore follows that the tax leviable under the Act is not a tax on entertainment. ( 8 ) THIS apart, the Act of 1932 has specific provisions in it to enable the proprietors of theatres to pass on the tax to the entertainees whereas the tax levied under the present Act cannot be passed on to the enfcertainees. This position will become clear from a perusal of the letter (No. Cin. 5/ent/53-4, dated 28th January 1954) from the District Superintendent of Police, Bangalore north, to the Management of Geetha Talkies, Bangalore which reads:"sub: Forwardal of monthly and quarterly statement of E. T. and Box office collections. Please intimate this office whether the show tax you have deducted in the quarterly collecr. 5/ent/53-4, dated 28th January 1954) from the District Superintendent of Police, Bangalore north, to the Management of Geetha Talkies, Bangalore which reads:"sub: Forwardal of monthly and quarterly statement of E. T. and Box office collections. Please intimate this office whether the show tax you have deducted in the quarterly collecr. ion statement for the Q. E. 31-12-1953 should be included for the net collection exclusive of E. T. There is no need to furnish the payment of show tax in the box office collection statements as it is not chargeable on the tickets sold. ""in future, please furnish the gross, E. T. and net collections only. " ( 9 ) THE tax levied under the Mysore Cinematograph Shows tax act (Mysore Act XVI of 1951) was not therefore intended to be passed on to the entertainees. It will be impossible even otherwise to pass on the tax to the entertainees. This position will be obvious from an examination of the table showing the rates at which the shows are to be taxed as set out in Section 3 of the present Act which reads : ( 51 ) THE effect of Sections 3 and 4 read together is that what is taxed is the show, and the person bound to pay it, though not expressly required to do so, is the proprietor. Prima facie, the words in Section 3 are such as to bring the tax under entry No. 62 rather than entry No. 60. It was argued that nevertheless the tax in substance and reality is a tax on profession or calling as it vitally affects the interests of the petitioners carrying on the business of exhibiting pictures. Inconvenience or difficulty felt by the payers to meet the requirement is not a factor affecting legality of the tax. A useful test to find out whether the tax is aimed at the profession or entertainments is to ascertain how entertainments or shows presented by persons who do not follow it as a profession or calling but do so occasionally to raise money for benefit of social or cultural organisation are dealt with. ( 52 ) UNLESS there is an order under Section 5 for exempting such a show from the operation of the Act it is as much liable as a show arranged by a professional exhibitor. ( 52 ) UNLESS there is an order under Section 5 for exempting such a show from the operation of the Act it is as much liable as a show arranged by a professional exhibitor. The liability does not depend upon the exhibitor being a professional man but upon the show itself being open to visitors on payment whoever may be the person arranging it. This is evident from the fact that a person who presents a single show occasionally as an experiment or for display of his taste cannot escape liability unless it is provided freely for persons witnessing it. ( 53 ) THE tax is not peculiar to this State and the levy under similar enactments in other States has been challenged in some cases. Of these, Sri Krishna v. Ujjain Municipality, A. I. R 1953 M. B. 145 has been strongly relied upon as it was held in that case that the tax is of the category referred to in entry 60 and should not exceed the maximum fixed by Article 276. The applicability of entry no. 62 does not appear to have been raised at all and the decision is based only on a consideration of the scope of entry No. 60. ( 54 ) WHETHER it is due to the counsel for the assessing authority having conceded that entry No. 60 is the source of power to levy the tax or otherwise, the case cannot be treated as laying down that entry No. 62 cannot be invoked. On the other hand cantonment Board, Poona v. W. I. Theatres Ltd. , A. I. R. 1954 Bom. 261 and Kantilal chaturbhuj Shah v. Palitana Municipality, A. I. R. 1956 Sau. 90 are cases directly in point and against the petitioners. The latter case deals with contentions identical with those urged here and the provisions in the Government of India Act corresponding to entry No. 62 are discussed in the former case. The view taken in these cases that the tax on cinema show is not one on profession, trade or calling but a tax on entertainment appears to have been expressed recently in a case of the East Punjab High Court. The view taken in these cases that the tax on cinema show is not one on profession, trade or calling but a tax on entertainment appears to have been expressed recently in a case of the East Punjab High Court. ( 55 ) SRI Krishnamurthy who appeared for the petitioner in one of the cases advanced a further contention that only indirect taxes can be levied by the State in exercise of the legislative power conferred by the Constitution and that the tax is open to the criticism that the obligation for payment cannot be shifted to others He drew our attention to statements of certain writers on Political Economy about the distinction between direct and indirect taxes. As Sulaiman J. remarked in re G. P. Motor spirits Act, A. I. R. 1939 F. C. 1 (14) "a statute of Parliament is not a thesis on economics and the question is really one of law and not of enonomics. " Learned counsel did not point out any constitutional bar to the levy of the tax by the State or any legal impediment or practical difficulty to the proprietor making up the amount payable by him for a show by raising the fee or fare charged for admission in each class. ( 56 ) THE question of the tax being just or unjust was adverted to by Sri Seshadri in the course of arguments as one to be taken into account. The Court is not concerned with the policy or reason underlying the Act but cannot ignore the allegation that the tax will affect seriously the freedom of trade or carrying on business guaranteed by the Constitution. The grievance put forward is that the amount payable will aggregate to a heavy sum per year so as to render it highly difficult for the petitioners to continue the business they have built up at heavy cost and the tax being an oppressive levy operates an unreasonable restriction on petitioners carrying on the trade or business freely. ( 57 ) APART from the tax like any other compulsory contribution involving a deduction from the income of the proprietors, there is no indication of the daily shows being reduced or the number of cinema theatres being lessened on account of the levy. ( 57 ) APART from the tax like any other compulsory contribution involving a deduction from the income of the proprietors, there is no indication of the daily shows being reduced or the number of cinema theatres being lessened on account of the levy. There is no proof of any show being given up or theatre being closed down as a result of the imposition and the tendency rather is for increase in these. ( 58 ) THE objection on the score of the tax being discriminatory inasmuch as it is directed against only a certain kind of amusement or entertainment and not against all has no force as it is well settled that mere variance in treatment of one class and another is not repugnant to the doctrine of equality enjoined by article 14 of the Constitution when the classification has a rational basis. The amusement or diversion provided by a cinematograph show is not the same as that of a dance or drama and as such it may look more unreasonable to treat them alike than as different. ( 59 ) THE principle of Equality would be offended if there is room for arbitrary application of the Act as between persons of the same class. Section 5 which gives power to Government to allow exemptions without stating the conditions or considerations as guidance for exercise of the power is liable to this attack as it lends scope for granting immunity in an uncontrolled manner. ( 60 ) THE fact of Section 5 being thus defective may cause doubt about propriety of dispensing with payment by any one but the complaint is not that any one is favoured on the strength of the section or wantonly denied the benefit of it but that there should be a levy on any one of that class. ( 60 ) THE fact of Section 5 being thus defective may cause doubt about propriety of dispensing with payment by any one but the complaint is not that any one is favoured on the strength of the section or wantonly denied the benefit of it but that there should be a levy on any one of that class. The proper way of considering the result of particular provision turning out to be invalid on the other provisions of an enactment is stated in A. G. of alberta v. A. G. of Canada, A. I. R. 1948 P. C. 194 :"question arises not infrequently and is often raised by asking whether the legislation is intra vires ' either in whole or in part' but this does not mean that when part is declared invalid what remains of the Act is to be examined bit by bit in order to determine whether the Legislature would be acting within its powers if it passed what remains. The real question is whether what remains is so inextricably bound up with the part declared invalid, that what remains cannot independently survive or, as it has sometimes been put, whether on a fair review of the whole matter it can be assumed that the legislature would have enacted what survives without enacting the part that is ultra vires at all". ( 61 ) I do not think that it can be said that the Act for the imposition of the tax would not have come into existence without the provision to relieve any one from liability. ( 62 ) SECTION 5 cannot be regarded as representing the "pith and substance" of the Act and it only permits an exception being made in special cases to the rule generally applicable to the proprietors of the shows. The effect of holding the section to be invalid is that no one can be excluded from liability and not to exonerate all. It is clearly severable from the rest of the Act and neither the intent and purpose of the Act nor its enforcement against petitioners can be deemed to be affected if Section 5 is left out. It is now pointed out that this section has since been suitably amended and so even this objection to the Act fails. It is clearly severable from the rest of the Act and neither the intent and purpose of the Act nor its enforcement against petitioners can be deemed to be affected if Section 5 is left out. It is now pointed out that this section has since been suitably amended and so even this objection to the Act fails. ( 63 ) ON the whole, I do not find any good ground on which the reliefs prayed for in any of the petitions can be granted. The petitions are dismissed with costs. Advocate's fee Rs. 100 in each case. PADMANABHIAH J. : i agree. HOMBE GOWDA J. : i also agree. --- *** --- .