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Roop Chand v. State Of U.P. Thru' Secretary Finance & Revenue & Others - WRIT TAX No. 48 of 2006 [2006] RD-AH 1158 (17 January 2006)


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Court no.55

Civil Misc. Writ Petition No. 48 of 2006.

Roop Chand S/o Late Kedar Nath, District Kaushambi.   Petitioner.


State of U.P. and others.                   Respondents.


Hon'ble Rajes Kumar, J.

By means of present writ petition, petitioner has challenged the order passed by the Divisional Commissioner dated 14th June, 2005 deciding the appeal of the petitioner against the order of the District Magistrate, Allahabad dated 7.5.1991 and the order dated 6.12.2005 rejecting the recalling application.

Brief facts of the case are that the District Magistrate vide impugned order dated 07.05.1991 cancelled its earlier order dated 28th April, 1991 granting exemption from the payment of entertainment tax under the U.P. Entertainments and Betting Tax Act, 1979. It appears that as a result of the order dated 7.5.1991 a demand of Rs. 10,26,339.92 paise towards entertainment tax for the period 28.5.1991 to 25.8.1994 was raised. Further demand of interest has also been raised. Petitioner challenged the aforesaid order dated 7.5.1991 passed by the District Magistrate in writ petition no.811 of 1991. Initially the writ petition was entertained and interim order was passed, but vide order dated 8th May, 1996, the writ petition was dismissed. It has been observed that the petitioner can avail the remedy provided under the statutory provisions of the Act. Petitioner filed appeal before Divisional Commissioner, Allahabad. It appears that vide order dated 21st May, 1996, the stay application of the petitioner was rejected by the Divisional Commissioner, Allahabad, which has been challenged in writ petition no.763 of 1996. This court disposed of the writ petition no.763 of 1996 and directed the Divisioinal Commissioner to dispose of the appeal at the earliest and till the disposal of the appeal, recovery of the impugned amount of entertainment tax and interest has been stayed. However, inspite of aforesaid order appeal could not be decided for a long time.

Learned counsel for the petitioner submitted that when the hearing of the appeal started in the year, 2005 by the Divisional Commissioner, he was ceased with the jurisdiction to decide the appeal and jurisdiction to decide the appeal was vested with the State Government and the said appeal could not be decided by the Divisional Commissioner. He further submitted that the Divisional Commissioner without considering the submission of the petitioner decided the appeal on 14.6.2005 and the recalling application has also been rejected. He submitted that under Rule 65 initially against the order of the District Magistrate the State Government had jurisdiction to decide the appeal, but by U.P. Act no.28 of 1995. Divisional Commissioner had become appellate authority to decide the appeal against the order of the District Magistrate but subsequently, by U.P. Act no.15 of 2001 w.e.f. 5th March, 2001 again State Government has been empowered to decide the appeal. He submitted on the date when the appeal was decided by the Divisional Commissioner, the jurisdiction to decide the appeal was with the State Government and not with the Divisional Commissioner and, therefore, the order of the Divisional Commissioner is patently without jurisdiction. Learned Standing Counsel has not disputed the aforesaid submissions of the learned counsel for the petitioner.  In this view of the matter, the date on which the appeal was decided by the Divisional Commissioner he had no jurisdiction to decide the appeal and, thus, the order dated 14.6.2005 is without jurisdiction and is liable to be set aside.

In the result, writ petition is allowed, order of Divisional Commissioner dated 14.06.2005 is set aside. The Divisional Commissioner is directed to transmit the concerned file to the State Government within a period of 15 days from the date of presentation of certified copy of the order, which the petitioner undertakes to present within a week. Thereafter the State Government is directed to decide the said appeal within a period of three months. Till the disposal of the appeal or for a period of four months, whichever is earlier, recovery in pursuance of the order dated 7th May, 1991 passed by the District Magistrate shall remain stayed.

With the above observations, writ petition stands disposed of.




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