IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 4932 of 1989 For Approval and Signature: Hon'ble MR.JUSTICE R.K.ABICHANDANI and Hon'ble MR.JUSTICE K.M.MEHTA ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? : NO 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the concerned : NO Magistrate/Magistrates,Judge/Judges,Tribunal/Tribunals? -------------------------------------------------------------- NATVERLAL MOHANLAL SHAH Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: 1. Special Civil Application No. 4932 of 1989 MR SV PARMAR for Petitioner No. 1 MR. PREMAL JOSHI, AGP, for Respondent No. 1 -------------------------------------------------------------- CORAM : MR.JUSTICE R.K.ABICHANDANI and MR.JUSTICE K.M.MEHTA Date of decision: 17/04/2003 ORAL JUDGEMENT (Per : MR.JUSTICE K.M.MEHTA) 1. Natverlal Mohanlal Shah-petitioner has filed this petition under Article 226 of the Constitution of India challenging the order dated 3.2.1989 passed by the Deputy Secretary, Information, Broadcasting and Tourism Department under Section 13 of the Gujarat Entertainment Tax Act, 1977 (hereinafter referred to as "the Act"). The Revisional Authority by his impugned order has quashed and set aside the order dated 30.11.1987 passed by the Mamlatdar, Entertainment Tax and specified Officer, Songadh under Section 9 of the Act. The Mamlatdar by his order assessed the entertainment tax at Rs. 2005.70 ps. under Section 9(1) of the Act and imposed a penalty of Rs. 2000/- under Section 9(3) of the Act ordering the total sum of Rs. 4,005.70 ps. to be recovered. 2. The facts giving rise to this petition are as under: 2.1 The petitioner is carrying on business/ profession of exhibiting films at his cinema theatre at Songadh near Surat which is in a tribal area. When the petitioner was running this cinema theatre on 10.8.1984, the Commissioner, Entertainment, Gandhinagar, inspected the said theatre. At the time of inspection, he had inspected the books of account, counterfoils relating to the payments for admission to the theatre received by the petitioner. He had also physically verified the number of persons who, at that time, were admitted in the theatre with the tickets issued to them, the tickets collected by the door-keeper and the counterfoil maintained by the petitioner. During the visit he had found that the proprietor had entered the number of tickets in the Register (Form No. 1) and the ticket numbers shown against the same were sold out. He had found as follows: Class No. of audience Entrance Nos. of sold Charge tickets -------------------------------------------------------- Balcony 14 Rs. 3.00 5199 to 5212 Upper Stall 30 Rs. 2.50 5860 to 5889 Lower Stall 14 Rs. 2.00 8509 to 8522 2.2 During the course of inspection and on verification of the record of the cinema theatre, it transpired that the proprietor of the cinema theatre had committed serious irregularities by issuing bogus tickets and thereby tried to evade payment of entertainment tax. 2.3 The Commissioner, Entertainment Tax, Gujarat State, Gandhinagar, by his communication dated 27.8.1984 addressed to the Mamlatdar & Prescribed Officer in connection with the said visit, stated that in view of the irregularities and for the reasons which are stated in the communication dated 27.8.1984, the specified Officer should assess the petitioner an amount of Rs. 70,052.25 ps. in accordance with the provision of Section 9(1) of the Entertainment Tax Act and also impose one and a half time more amount (i.e. Rs. 1,05,078.37 ps.), by way of imposing penalty. Thus, in all Rs. 1,75,130.62 ps. may be assessed tax by issuing show cause notice as to why appropriate steps should not be taken against the petitioner for misappropriation, and, cheating the Government and not maintaining true and correct accounts, committing breach of Sections 7 and 21 of the Act. 2.4 It has been stated in the petition that pursuant to the directions, the Prescribed Officer and Mamlatdar issued the notice under Section 9 of the Act read with Section 15(2) of the Gujarat Entertainment Tax Rules, 1979 (hereinafter referred to as "the Rules") on 14.9.1984. The petitioner appeared before the Prescribed Officer and Mamlatdar. It is the case of the petitioner that the Prescribed Officer and Mamlatdar by his order dated 27.2.1985, without considering the representation of the petitioner and only at the dictate of the Commissioner of Entertainment Tax, assessed the amount of tax as per Section 9(1) of the Act at Rs. 70,052.25 ps. and one and a half time thereof as penalty amounting to Rs. 1,05,078.37 ps., in all, an amount of Rs. 1,75,130.62 ps. 2.5 Being aggrieved and dissatisfied with the aforesaid order the petitioner preferred appeal under Section 12 of the Act to the Collector, Entertainment Tax, Surat. The Collector, Entertainment Tax, Surat by his order dated 31.5.1985 allowed the appeal and remanded the case to the Mamlatdar with a direction for a de novo hearing. 2.6 Pursuant to the aforesaid directions of the Collector, the Prescribed Officer and Mamlatdar once again issued notice under Section 9 of the Act read with Rule 15(2) of the Rules. The petitioner appeared before the Prescribed Officer and Mamlatdar and made his submissions. The Mamlatdar by his order dated 10.3.1986 at Annexure-C to the petition, made assessment at the same amount, namely, Rs. 70,052.25 ps. as entertainment tax under Section 9(1) of the Act and penalty of Rs. 1,05,078.37 ps. under Section 9(3) of the Act. 2.7 Being aggrieved and dissatisfied with the said order, the petitioner preferred appeal before the Collector, Entertainment Tax, Surat under Section 12 of the Act. The Collector, Entertainment Tax, Surat, again remanded the matter to the Prescribed Officer and Mamlatdar. 2.8 Pursuant to the direction of the Collector, Entertainment Tax, Surat, the Prescribed Officer and Mamlatdar again issued a notice on 31.8.1987 to the petitioner. The petitioner appeared and made his submission in writing before the Specified Officer and Mamlatdar, Surat. 2.9 The Specified Officer and Mamlatdar, pursuant to the order of remand, by his order dated 30.11.1987 considered the case of the petitioner and ultimately made an assessment of entertainment tax of Rs. 2,005.70 ps. and imposed Rs. 2,000/- as penalty, and a total amount of Rs. 4,005.70 ps. was ordered to be recovered from the petitioner. 2.10 The Revisional Authority decided to exercise suo motu the power under Section 13 of the Act. Before exercising the said power, the Revisional Authority issued notice dated 20.8.1988 stating therein as to why the order passed by the Mamlatdar dated 30.11.1987 should not be revised. The petitioner filed reply on 25.10.1988 against the said notice through his advocate. 2.11 The Revisional Authority, after considering the entire case of the petitioner right from the beginning i.e. from the date of inspection on 10.8.1984 till the order passed by the Mamlatdar dated 30.11.1987 and perusing the relevant papers, particularly the notice issued by the Revisional Authority and the representation made by the petitioner, ultimately, by its order dated 3.2.1989 quashed and set aside the order dated 30.11.1987 passed by the Mamlatdar, Entertainment Tax and Specified Officer, Songadh and remanded the case to the Mamlatdar, Entertainment Tax and Specified Officer, Songadh, for reassessment after examining the evidence afresh. 3. Being aggrieved and dissatisfied with the aforesaid order of the Revisional Authority, the petitioner has filed this petition under Article 226 of the Constitution of India challenging the order of remand, before this Court. However, before we consider the submission of the learned counsel for the petitioner, during the course of the hearing, the learned A.G.P. Mr. Joshi appearing for the respondents, on instructions received by him, makes a statement that after the remand order was made, the Prescribed Officer has already made an order on 30.3.1991 and thereafter the petitioner had filed an appeal in which also the Collector, Entertainment Tax, Surat, has passed order on 19.12.1991. He places on record the order made by the Prescribed Officer after the remand and the order made by the appellate authority in this matter. In view of this development, the petition has become infructuous and is rejected as having become infructuous. Rule is discharged with no order as to costs. (R.K. ABICHANDANI, J) (K.M. MEHTA, J) (pkn)