IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 20.10.2010 CORAM : THE HONOURABLE MR.JUSTICE P.JYOTHIMANI WRIT PETITION NO.15782 OF 2003 S.Somasundaram, Proprietor M/s.Kala Theatre ...Petitioner Vs The Deputy Commercial Tax Officer Arkonam, Vellore District. ...Respondent PETITION under Article 226 of The Constitution of India praying for the issuance of a Writ of Certiorarified Mandamus to call for the records on the file of the respondent in Na.Ka.A4/1370/03 dated 22.5.2003 received on 24.5.2003, quash the same as being without jurisdiction, authority of law, contrary to principles of natural justice and unjustified on facts and law and directing the respondent to consider and comply with the request for being permitted to pay entertainment tax under Section 4 of the Tamilnadu Entertainments Tax Act, 1939 instead of under Section 5-B of the Act as requested by letters dated 1.4.2003, 28.4.2003 and 4.5.2003 after issue of notice, enquiry and opportunity and personal opportunity of being heard. For Petitioner : Mr.C.Venkat Raman For Respondent : Mr.J.Ganesan, GA (T) O R D E R The writ petition is directed against the notice issued by the respondent dated 22.5.2003, by which, while considering the application of the petitioner proposing to exercise his option for payment of entertainment tax under Section 4 of the Tamilnadu Entertainments Tax Act, 1939, instead of Section 5-B of the said Act, rejected the same and directed the tax to be paid along with penalty under Section 5-B of the said Act within the stipulated time. 2. The petitioner is stated to be running a cinema theatre in name of M/s.Kala Theatre at Nemili and is stated to have been paying tax under Section 5-B of the said Act ever-since the commencement of the said theatre, which is stated to be from the year 1977. However, by a representation dated 1.4.2003 made to the respondent, the https://hcservices.ecourts.gov.in/hcservices/ petitioner sought permission to withdraw the option exercised by him in the payment of entertainment tax on compounded basis as provided under Section 5-B of the said Act and sought permission to pay the tax as per Section 4 of the said Act only on the actual collection by sale of tickets. 3. It is not in dispute that from the year 1977, till the date of the said representation, the petitioner, by virtue of exercising the option under Section 5-B of the Act, has been paying tax on compounded basis. Section 5-B of the said Act enables the theatre owners running permanent or semi-permanent or open air theatre to exercise their option for payment of tax on compounded basis under Section 5-B(1) of the said Act. Even though in the earlier communication, the respondent has chosen to state that in respect of the theatre situated in the panchayat union areas, Section 5-B of the said Act is not applicable, a reading of Section 5-B(1) of the said Act does not support the case of the respondent as per the said communication. In any event, even in the impugned notice issued by the respondent, the respondent has not taken such stand. 4. Section 5-B(5) of the said Act reads as folows : 'The option permitted under this Section shall continue to be in force so long as the proprietor is eligible to pay tax under this Section and has not withdrawn his option', which enables a person, who has exercised his option to pay tax under Section 5-B(1) of the said Act to withdraw his option. The conduct of the respondent in permitting the petitioner to pay entertainment tax under Section 5-B of the said Act from 1977 till the date of his representation shows that the option exercised by the petitioner has been, in fact, permitted by the Authorities under the said Act. If so, as per Section 5-B(5) of the said Act, if such option is sought to be withdrawn, it is incumbent on the part of the Authorities to give reason if such a request is rejected. By withdrawing the option under Section 5-B of the said Act, the petitioner only seeks to pay the entertainment tax under Section 4 of the said Act on the actual ticket collection. 5. A reference to the impugned notice shows that the respondent has not chosen to consider the representation of the petitioner in the light of Section 5-B(5) of the said Act and give reason for rejecting the said representation. In such view of the matter, the impugned notice is liable to be set aside. 6. Accordingly, the impugned notice dated 22.5.2003 is set aside and the writ petition is allowed, however, with a direction to the respondent to consider the representation of the petitioner dated 1.4.2003 in the light of Section 5-B(5) of the said Act and pass appropriate orders on merits and in accordance with law and if https://hcservices.ecourts.gov.in/hcservices/ necessary, give a personal hearing to the petitioner. Such order shall be passed within eight weeks from the date of receipt of a copy of this order. No costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar RS To The Deputy Commercial Tax Officer, Arkonam, Vellore District. 1 cc To Mr.C.Venkataraman, Advocate, SR.75991 1 cc To The Special Government Pleader (Taxes), SR.75370 WP.NO.15782 OF 2003 NSM(CO) sra 29/10/2010 https://hcservices.ecourts.gov.in/hcservices/