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M/S Kamla Picture Palace And Another v. State Of U.P. & Others - WRIT TAX No. 1904 of 2002  RD-AH 366 (26 July 2004)
CIVIL MISC. WRIT (TAX) PETITION NO.1904 OF 2002
M/s Kamla Picture Palace and another ....Petitioners
State of U.P.and others ....Opp.Parties
Hon'ble Rajes Kumar, J.
By means of the present writ petition, petitioners have prayed for quashing of the order dated 02.06.2001 passed by Special Secretary in appeal under section 12(2) of the U.P. Entertainment and Betting Act, 1979 (hereinafter referred to as "Act") and order dated 27.05.2002 by which the review petition was rejected.
Petitioner is running a cinema hall in the name of Kamla Picture Palace and holds licence under the Act. Petitioner was exhibiting a film "Daag The Fire" from 19.03.1999. On 25.03.1999 an inspection was made by Assistant Entertainment and Betting Tax Commissioner (Head Office) Lucknow at 2.30 P.M. At the time of inspection gate diary, Form-B-3 was found properly filled and no discrepancy of any kind was noticed. However, a notice dated 29.05.1999 was issued to the petitioner to show cause that why less tax was paid on the earlier day, why a sum of Rs.9,655.50p. be demanded towards additional tax and the penalty of Rs.20,000/- be imposed under section 12 of the Act. Petitioner filed reply. However, respondent no.3 passed an order dated 01.09.1999 and imposed a sum of Rs.9,655.50p. towards additional entertain tax and Rs.10,000/- towards penalty. Against the said order, petitioner filed appeal, which was dismissed by the respondent no.2 vide order dated 02.06.2001. Against the said appellate order, petitioner filed appeal before the State Government. Special Secretary by the impugned order dated 02.06.2001 rejected the appeal. Petitioner filed a review application on the basis of the circular dated 25.04.2001 issued by the Principal Secretary, by which earlier circular dated 15.09.1990 was held improper. Said review application was also rejected by order dated 27.05.2002.
Learned counsel for the petitioner submitted that four inspections were made during the relevant period under consideration on 21.03.1999, 23.05.1999, 24.03.1999 and 25.031999 and in all the inspection gate diary and Form-B were found properly filled and no discrepancies were noticed. It was further submitted that on 25.03.1999 was the "Ramnavami" and on account of which rush was little higher than the earlier days and therefore, in the absence of any material that the more persons were allowed to watch the film and the entertainment tax was accordingly evaded, demand of additional entertainment tax and levy of penalty are patently erroneous. In support of its contention decision of this Court dated 10.11.1995 passed in Writ Petition No.413 of 1992, Om Prakash Pandey Vs. State of U.P. has been relied upon. Learned Standing Counsel relied upon the decision of the respondents.
Heard learned counsel for the parties. I have perused the order of Special Secretary and the authorities below. Additional tax has been demanded only on the ground that the petitioner has paid less entertainment tax in comparison to the payment of entertainment tax on 25.03.1999. Perusal of the figures shows that on 25.03.1999 a sum of Rs.3,639.50p. was paid, while on 24.03.1999 a sum of Rs.1,170.50p. was paid. Highest tax was however paid on 19.03.1999 at Rs.5,279/-. In my opinion, the payment of additional tax and the penalty levied at Rs.10,000/- is arbitrary and without any basis. Admittedly, between 19.03.1999 to 25.03.1999 four inspections were made on 21.03.1999, 23.03.1999, 24.03.1999 and 25.03.1999 and in all the inspections gate diary and Form-B were found duly filled and no discrepancies were noticed. In the absence of any material demand of additional tax is based on surmises and conjectures and therefore, liable to be set aside. . Consequently penalty is also liable to be set aside. Impugned orders passed by the respondents are hereby quashed.
Writ petition is accordingly allowed. Any amount deposited in pursuance of the order be refunded to the petitioner forthwith.
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