CIVIL WRIT JURISDICTION CASE No.15914 of 2001 ****** In the matter of an application under Article 226 of the Constitution of India. ****** M/S Uma Talkies, a unit of M/s. Mithila Properties Publication & Contract Enterprises Private Ltd, having its place of business at Pirmohani, town and district Patna through its Managing Director Amar Nath Pandey. .... .... Petitioner. Versus 1. The State of Bihar, through the Secretary, Department of Finance, Government of Bihar, Old Secretariat, Patna. 2. The Commissioner of Commercial Taxes, Bihar, Patna. 3. The Deputy Commissioner of Commercial Taxes, North Circle, Patna. .... .... Respondents. ****** For the Petitioner : Mr. Ramesh Kumar Agrawal, Advocate For the Respondents: Mr. Piyush Lal, A.C. to A.A.G.-I. ****** P R E S E N T THE HON’BLE MR. JUSTICE SUDHIR KUMAR KATRIAR THE HON’BLE MR. JUSTICE VIKASH JAIN ******** S.K. Katriar, J. This writ petition has been preferred with the prayer to direct respondent nos.2 and 3 to allow remission towards payment of compounding of tax under the provisions of the Bihar Entertainment Tax Act 1948 (hereinafter referred to as „the Act‟), for the period 6.10.2000 to 21.10.2000 (16 days). 2. A brief statement of facts essential for the disposal of this writ petition may be indicated. The petitioner owns a cinema house in the township of Patna and was, at the relevant point of 2 time, holder of a licence under the Act to exhibit cinema shows for the general public. The petitioner had obtained permission from the appropriate authority to make payment of tax on compounding basis for the license period in terms of section 3B of the Act. On 6.10.2000, in the wee hours, the authorities had raided the premises of the petitioner and found that they were exhibiting a film by the title of „Shikari‟ for the duration of mid- night to 3.00AM. They seized the counterfoils, counter-sale, and stopped the cinema show. The petitioner preferred appeal against the action. The learned appellate authority passed interim direction on 20.10.2000 (Annexure-3), whereby the petitioner was permitted to continue with exhibition of film shows during the pendency of the proceeding before the licensing authority. The learned appellate authority finally disposed of the matter with the direction to the District Magistrate, Patna, being the licensing authority, to dispose of the matter on merits. He finally disposed of the matter on 4.1.2001(Annexure-5), wherein it has been observed that the petitioner was acting in violation of the terms and conditions of licence. He was, however, let off with the warning not to repeat the same in future, being his first violation of the terms and conditions of licence. The petitioner thereafter approached the Commercial Taxes authority for remission from 3 payment of sales tax on pro-rata basis for the period 6.10.2000 to 21.10.2000, which has been rejected, leading to the present writ petition. 3. We have perused the materials on record and considered the submissions of the learned counsel for the parties. The relevant portion of section 3B of the Act reads as follows: “3-B. Compounding of tax. - (1) The State Government may, in lieu of tax payable under Section 3-A on application of a proprietor, in the form prescribed20 under sub-section (2) of Section 3-F, on such conditions, as may be prescribed, permit him to pay a fixed amount or a fixed percentage of gross collection capacity for a specified number of shows in a specified period irrespective of actual number of shows which may be held in that period:” It is thus evident that in case of compounding of taxes, the licensee can be permitted to have any number of shows subject to the terms and conditions mentioned in the licence. The petitioner has not placed on record a copy of the licence which would show the terms and conditions on which the licence was issued to the petitioner. 4. On the other hand, the respondent authorities have stated in their counter affidavit that the licence had been issued with the clear condition that the petitioner was permitted to hold four shows daily, i.e. 12.00PM to 3.00PM, 3.00PM to 6.00PM, 6.00PM to 9.00PM and lastly 9.00PM to 12.00PM. A copy of 4 this counter affidavit was served on learned counsel for the petitioner way back on 16.1.2002, but it has not filed rejoinder thereto. It, therefore, follows that the statement made in the counter affidavit would be deemed in law to have been accepted by the petitioner by non-traverse. It automatically follows that the petitioner did not have the permission to exhibit cinema shows beyond mid-night. The admitted case of the parties is that the petitioner was on the date in question holding cinema show from 12.00PM to 3.00 AM, which was in clear violation of the terms and conditions of the licence. In that view of the matter, the question for remission on pro-rata basis for the period cinema shows was suspended, does not arise. 5. We do not find any merit in this writ petition. It is accordingly dismissed. The respondents are free to proceed in accordance with law. In the circumstances of the case, there shall be no order as to costs. (S K Katriar, J.) Vikash Jain, J. I agree. (Vikash Jain, J.) Patna High Court, Patna. Dated the 20th of July, 2011. S.K.Pathak/ (NAFR)