Case: M/s. Veena Theatre, Patna Vs. State of Bihar

Act XXXV of 1948) (to be hereinafter referred to as the Act) and the rules framed thereunder, for the period9, the appellant submitted a return showing a tax liability of Rs. 36,860. It deposited that amount. But the Additional Superintendent, Commercial Taxes Patna rejected its return and assessed it on the basis of best judgment and levied a tax of Rs. 67,500 on it for the period in question. The appellant unsuccessfully appealed to the Appellate Assistant Commissioner, Commercial Taxes and thereafter took up the matter in revision before the Deputy Commissioner of Commercial Taxes. That officer made some minor modification in the assessment order; but he substantially upheld the order of the Additional Superintendent. Aggrieved by that order, the appellant took up the matter to the High Court as mentioned above.3. Before the High Court as well as this Court the appellant raised four questions of law namely (1) Rule 28(4) of the rules is beyond thepower conferred on the State Government under S. 21 of the Act; (2) No power is given either under the provisions of the Act or under the rules to assess on the basis of best judgment; (3) Rule 28(4) is repugnant to Section 9(2) of the Act and (4) The assessing authority had arbitrarily fixed the assessees receipts.4. The return submitted by the appellant was rejected by the authorities on the grounds that the books of account produced by the appellant were entirely unreliable that the appellant had maintained duplicate sets of tickets and had suppressed the sale of the tickets. These findings were based on the result of a surprise inspection. All the authorities under the Act have concurrently come to the conclusion that theproduced by the appellant were entirely unreliable; that it had maintained duplicate sets of tickets and that it suppressed the sale of tickets

Court's reasoning:
4. The return submitted by the appellant was rejected by the authorities on the grounds that the books of account produced by the appellant were entirely unreliable that the appellant had maintained duplicate sets of tickets and had suppressed the sale of the tickets. These findings were based on the result of a surprise inspection. All the authorities under the Act have concurrently come to the conclusion that theproduced by the appellant were entirely unreliable; that it had maintained duplicate sets of tickets and that it suppressed the sale oftickets. These findings werenot challenged before the High Court and therefore we did not allow the learned Counsel for the appellant to challenge those findings. In view of those findings, it cannot be denied that the taxing authorities were justified in rejecting the return submitted by theprovision in the Act deals with the mode of determination of tax payable by an assessee. That aspect of the matter is left to be governed by the rules to be made. Section 21 of the Act empowers the State Government to make rules.(1) of that section provides that the State Government may make rules, consistent with the Act for securing the payment of entertainment tax and generally for the purpose of carrying into effect the provisions of the Act.The power given under this provision is wide enough to make rules for the determination of the tax liability of an assessee. The mode and the manner in which that liability is to be determined can be provided under the rules. The main purpose of the Act is to levy and collect entertainment tax. Therefore it is idle to say that in exercise of the powers conferred on the State Government under S. 21(1) of the Act that Government cannot make rules for the determination of the tax liability of an assessee. Hence we reject the contention that Rule 28(4) which empowers the taxing authorities to determine the tax liability is ultra vires S. 21 of theule (4) of Rule 28, the Superintendent or Assistant Superintendent, as the case may be, is competent to make an assessment on the basis of best judgment. The contention that the power conferred under(4) of Rule 28 is available only if the assessee fails to make a return or having made it, fails to comply with the terms of the notice issued under(2) or to produce any evidence under(3), overlooks the fact that the assessee must satisfy that the return made by him is a correct one. If the return made by the assessee is rejected on a relevant ground, such a return cannot be considered as a good return under(1) of Rule 28. In that event, the assessee is deemed to have made no return as required by Rule 28(1) and consequently he is liable to be assessed on the basis of best judgment.8. There is no substance in the contention that Rule 28 is repugnant to Section 9(2) of the Act.That rule covers a filed uncovered by Section 9(2). The provisions relating to the imposition of penalty found in S. 9(2) are not inconsistent with or repugnant to the provisions contained in Rule 28. Rule 28 deals with assessment whereas(2) of Section 9 deals with imposition of penalty. Hence the contention that Rule 28 is inconsistent with Section 9(2) has to be rejected.9. We are unable to accept the contention that the assessment in this case was arbitrarily made. The Assistant Superintendent of Commercial Taxes had computed the tax liability of the assessee on relevant grounds. He arrived at the conclusion that the tax liability of the assessee for the period in question is Rs. 67,500 after taking into consideration materials which were relevant in thatwith that aspect of the case this is what that officer says in his orderVeena cinema has a capacity so as to yield a tax of nearly 500 per show, if the house goes full. If, therefore, the Cinema had run to the capacity of all days and in each show of the assessment period, the tax would have amounted to Rs. 2,70,000. But it is a known fact that the shows run full to the capacity only on the first days of the start of exhibition of a good and popular picture and that too only in the evening shows. The matinee and the night shows full (sic). As the picture gets older, the sale decreases. Towards the end, the number of persons to witness the picture thin down considerably and the amount of tax falls even below Rs. 50. Taking these points into consideration I feel that the business done by this Cinema in the assessment period was such as to give tax at the average rate of Rs. 125 per show. At this rate the total amount of tax payable in the assessment period comes to Rs. 67,500. This cinema is therefore, assessed to pay a tax of Rs. 67,500 for the period from0. The facts mentioned above are cogent and relevant in the matter of computing the probable receipts by sale of cinema tickets.