MOHAMMAD ATHAR Vs. STATE OF U.P.

JUDGEMENT

(1.) Heard learned counsel for the petitioners, learned standing counsel for the State and perused the record. The present petition has been preferred against the impugned order dated April 3, 1997 passed by respondent No. 1 (annexure 9) and order dated December 17, 1996 passed by respondent No. 2, Commissioner, Entertainment Tax, U.P., Lucknow (annexure 8) to the writ petition.

(2.) The leaned counsel for the petitioners submitted that the petitioners are proprietor of cinema hall "Naz Picture Palace" situated in the local area of Sardhana in District Meerut. Licence was granted to the petitioners under the provisions of the U.P. Cinema (Regulation) Act and U.P. Cinematography Rules and the cinema hall is governed by U.P. Entertainments and Betting Tax Act. On November 25, 1994, an inspection was made by the Additional District Magistrate, Meerut, along with three Inspectors of the Entertainment Tax Department at about 10.50 p.m. After the inspection no action was taken by the District Magistrate, Meerut, against the petitioner because no illegality or irregularity was found. Subsequently, the Commissioner, Entertainment Tax, U.P., Lucknow, respondent No. 2 issued an order dated November 28, 1994 by which the licence of the cinema hall was suspended with immediate effect and proceedings were proposed under sections 12 and 15 of the Act and under section 8 of the U.P. Cinema (Regulation) Act, 1955. Seven charges were levelled against the petitioners are as follows:

(3.) The learned counsel for the petitioners submit that all the charges and allegation were denied. He contended that the reply was submitted to the show-cause notice on December 5, 1994. There was no evidence to show that without signature of the Entertainment Tax Inspector the tickets were being used from serial No. 85501 to 86000 for balcony class and 58501 to 59000 for D.C. class. There was allegation of forged signature of Entertainment Tax Inspector, which was verified and signed by the then Entertainment Tax Inspector Sri Manoj Bajpai but neither it was verified from him nor signature was got verified by hand writing expert. No receipt was issued after recovery and seizure of the documents at the time of inspection. Any specimen signature was not obtained before the petitioner. The noon show of November 25, 1994 was inspected by the Entertainment Tax Inspector and it was found and verified by him that Zurasic Park was exhibited. However, his statement was also not recorded. The false allegations were made and on the basis of the charges levelled against the petitioners, the tax and penalty were imposed against him. Against the order passed by respondent No. 2, the appeal was preferred however, the appellate authority, respondent No. 1, failed to consider the defence of the petitioners and without passing the reasoned order merely approved the order passed by respondent No. 2 and not only approved but enhanced the tax liability against the petitioners by impugned order dated April 3, 1997. The impugned order is liable to be quashed and direction to be issued after affording opportunity of hearing to the petitioners.