Partly allowed

M/s. Komala Theatre v. Appellate Deputy Commissioner (C.T)

Telangana HC10 Oct 2014CRP/3725/2008

Case brief

AI extract

What is this about?

The Hon'ble High Court set aside the order of the appellate authority which dismissed the petitioner's appeal regarding entertainment tax. The court held that the initial assessment notice violated Rule 17 of the Act by failing to give the petitioner an opportunity to explain before determining the tax.

What did the court decide?

The impugned order was set aside. The notice of 28.6.1996 was treated as a show-cause notice, and the petitioner was directed to give explanation within two weeks for fresh determination of tax.

M/s. Komala Theatre Vs Appellate Deputy… — Writ and Judicial Review | Telangana HC (2014)

¶1

THE HON'BLE SRI JUSTICE K.C.BHANU AND THE HON’BLE MRS JUSTICE ANIS

¶2

C.R.P.No.3725 OF 2008

¶3

ORDER:- (per Hon’ble Sri Justice K.C.Bhanu)

¶4

The Civil Revision Petition is directed against the order, dated 20.5.2008, in Appeal No.VJA.II/92/06-07 on the file of the Appellate Deputy Commissioner (CT), Vijayawada, whereunder and whereby, appeal preferred by M/s.Komala Theatre, Challapalli, Krishna District against the notice issued by the Entertainment Tax Officer, Avanigadda, Vuyyuru Circle in RC.B3.15/96 (Avanigadda), dated - .12.2005, for levying tax of Rs.87,697/- on a turnover of Rs.1,03,752/-, was dismissed.

¶5

2. The Entertainment Tax Officer, Avanigadda issued a notice, dated 28.6.1996, directing the petitioner herein to pay the differential entertainment tax of Rs.87,697/- for the period from 1.4.1993 to 1.8.1993 within a period of 7 days after receipt of that notice failing which necessary action would be initiated against the exhibitor in accordance with the provisions of the Andhra Pradesh Entertainments Tax Act, 1939 (for short, “the Act”). As the Entertainment Tax Officer revised the tax calculated treating that the petitioner was eligible to pay the tax on weekly basis from 2.8.1993 and that she had to pay the tax under Section 4 of the Act, she filed W.P.No.20162 of 1996. Though interim order was made absolute, the said writ petition was dismissed as withdrawn with a liberty to avail the remedies available to the petitioner under law. Accordingly, the petitioner filed the aforementioned appeal before the appellate authority and the same was dismissed on 20.5.2008. Challenging the same, petitioner filed the present Revision Petition.

¶6

3. Learned counsel for the petitioner/appellant contended that the petitioner has been paying the relevant taxes to the Government in accordance with Section 5 of the Act; that the impugned order was passed without giving any notice to the petitioner thereby, violating Rule 17 of the Andhra Pradesh Entertainments Tax Rules, 1939 (for short, “the Rules”) and hence, he prays to set aside the impugned order.

¶7

4. On the other hand, learned Government Pleader for Commercial Tax (Andhra Pradesh) appearing for the respondents contended that since the petitioner has not exercised her option to pay the entertainment tax under Section 5 of the Act within the time prescribed, the assessing authority rightly assessed the tax in terms of Section 4 of the Act; that there are no grounds to interfere with the impugned order and hence, he prays to sustain the impugned order.

¶8

5. One of the principles of natural justice is that no man shall be condemned unheard. If it is violation of the principles of natural justice, the order impugned is liable to be set aside. The order, dated 28.6.1996, of the assessing authority in assessing the Entertainment Tax at Rs.87,697/- for the period from 1.4.1993 to 1.8.1993 is completely in violation of Rule 17 of the Rules. Rule 17 of the Rules reads as follows:

¶9

“Procedure when no return is submitted or an incorrect or incomplete return is submitted by the Proprietor:- If no return is submitted or if the return submitted appears to the assessing authority to be incorrect or incomplete, the assessing authority shall, after making such enquiry as he considers necessary, assess to the best of his judgment, the amount of tax payable by the proprietor under the Act for each quarter or for such period less than a quarter, as may be considered necessary by the said authority, after giving the proprietor an opportunity of proving the correctness of any return submitted by him or that no return was due from him.”

¶10

From the above Rule, it is clear that the Entertainment Tax

¶11

Assessment Officer has to necessarily give an opportunity to the owner of the theatre by calling for his explanation and thereafter, determine the tax, if any, either under Section 4 or Section 5 of the Act, but, such procedure has not been followed in the instant case. The Entertainment Tax Assessment Officer determined the tax without affording any opportunity to the petitioner to give her explanation. Therefore, the impugned order is liable to be set aside and is, accordingly, set aside. However, we make it clear that the notice, dated 28.6.1996, in Permit No.7/1993-94 shall be treated as a show cause notice for which the petitioner shall give her explanation within two (2) weeks from the date of receipt of a copy of this order and thereafter, the Entertainment Tax Assessment Officer shall determine the tax payable by the petitioner in accordance with the provisions of the Act after duly considering her explanation.

¶12

6. With the above direction, the Civil Revision Petition is disposed of. There shall be no order as to costs.

¶13

7. Miscellaneous petitions, if any, pending in this Civil Revision Petition shall stand closed.

¶14

______________________ JUSTICE K.C.BHANU _______________ JUSTICE ANIS Date: 10.10.2014 AMD

¶15

THE HON'BLE SRI JUSTICE K.C.BHANU AND

¶16

THE HON’BLE MRS JUSTICE ANIS

¶17

C.R.P.No.3725 OF 2008

¶18

DATE: 10.10.2014

¶19

AMD

M/s. Komala Theatre v. Appellate Deputy Commissioner (C.T)

Case brief

What is this about?

What did the court decide?

M/s. Komala Theatre v. Appellate Deputy Commissioner (C.T)

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Md.Azmatullah Khan Vs Secty Tr and R and B Dept Hyd and Another

Smt.Penumatsa Appala Narasamma Vs Managing Director

Reliance General Insurance Company Limited Vs Smt. K. Surya Kalavathi

T. Srihari Rao,S/o.Sri T.Lakshminarayana Vs The Senior Divisional Operating Manger

K. Ramachander Vs The State of Ap

K.Muttaiah S/o Late (Sri) Pochaiah Vs The Hyderabad Metropolitan Water Supply And Sewerage Board