MODEL CINEMA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) THE petitioner, proprietor of a cinema hall has approached this Court under Articles 226 and 227 of the Constitution of India, challenging the order dated 6/6/1988 passed by Respondent No. 3, holding that on account of breach of conditions of exemption for exhibiting film / movie ("gandhi') on the part of the petitioner, he was liable to pay Rs. 56,153=59 under section 30 of the Gujarat Entertainment Tax Act, 1977 (hereinafter referred to as " the Act"), and also order dated 7/8/1993 passed by Respondent No. 2, Entertainment Tax Commissioner, rejecting revision application filed by the petitioner, assailing order of Respondent No. 3, on the ground that the notice itself was belatedly issued and was time barred and the authorities did not appreciate the fact that the very basis for treating breach of condition was irrelevant and the conclusion arrived at in this behalf was without any basis or evidence on record.

(2.) THE petitioner at the relevant time was a proprietor of a cinema hall wherein he was licensed to exhibit films. The film called "gandhi" enjoying 100% entertainment tax exemption was exhibited from 4/2/1983 to 19/5/1983. During this period on some days mentioned in the order, namely 11/2/1983, 17/2/1983, 19/2/1983, 26/2/1983, 27/2/1983, 3/3/1983, 6/3/1983, 12/3/1983 and 13/3/1983 film was also exhibited in the morning shows as there was mounting demand from various schools, students, and other viewers, and as the demand could not be met by exhibiting the film only during the regular shows as contended by the petitioner. The return for the income was filed and the tax was assessed and paid. Thereafter, on account of audit objection in respect of breach of condition of exemption contained in Schedule to Notification dated 8/9/1983, which was, not to increase the existing rate of admission to the tax exempted film, a show cause notice came to be issued to the petitioner. Respondent No. 3 issued the same on 30/8/1986 calling upon the petitioner to show cause as to why it may not be held that he has committed breach of the said condition so as to be liable to be proceeded under Section 30 of the Act.

(3.) THE petitioner submitted his reply inter alia contending that on account of mounting pressure and demand from viewers film was decided to be exhibited in the morning, but as such the exhibition of film in the morning can not be classified to be exhibition during morning show as sought to be relied upon by the audit party. Moreover morning shows were not held in this theater since long and therefore, admission charge leviable for regular shows were actually levied and recovered from the viewers for admission in the morning shows also. In fact the morning shows were not a morning show but regular shows. At the best it could be said that the exhibition of film in the morning was on account of extra show and not morning show as such. The extra show cannot be termed to be morning show so as to prevent proprietor of exhibition hall from charging regular rates for admission. Petitioner also contended that issuance of show cause notice dated 30/8/1986 in itself is beyond the period of limitation prescribed under the Act, as the so called morning shows were held in the year 1983. The show cause notice was therefore barred under section 9 (2) of the Act and reading with Rule 15 of the Gujarat Entertainment Rules, 1979, same was not tenable.