SUSHILA CHITRA MANDIR Vs. STATE OF U P

JUDGEMENT

(1.) This writ petition is an example to show as to what extent a litigant can stake his claim to rob the public exchequer, that's too through a writ court. Petitioner claims that when there is a tax holiday as the order is issued to that effect, the concerned dealer does not have to apply for exemption. He gets the relief automatically and the exemption is only between the Revenue and the dealer and not between the dealer and the consumer. The dealer has a right to collect the tax from the consumer and pocket it, and there is no obligation on this part to make the payment of the said amount to the State.

(2.) By means of the Petition No. 885 (Tax) of 2004 petitioner prays for quashing the sale proceedings dated 1.7.2004 in which the cinema hall of the petitioner along with the buildings and land has been auctioned in favour of the respondent No. 2 for nonpayment of entertainment tax collected by the petitioner.

(3.) The case has a chequered history as petitioner has approached this Court several times. The State of Uttar Pradesh issued an order dated 21.7.1986 providing for entertainment tax holiday for cinema halls in particular area if constructed and run in accordance with the terms incorporated therein. Petitioner raised the construction of the cinema hall and it was grated licence to exhibit the films in 1990 and the petitioner started exhibiting the films. Petitioner has never been granted the tax exemption by the statutory authority in view of the provisions of the said Government order dated 21.7.1986 nor petitioner claims that any application has ever been made for that purpose. In view of the provisions of Entertainment and Betting Tax Act, 1979 (hereinafter called the Act, 1979), certain recoveries of entertainment tax were attempted to be made from the petitioner but he approached this Court by filing the Writ Petition No. 23754 of 1991 for restraining the authorities from making recovery of tax. This Court did not grant any interim relief. The writ petition was disposed of vide order dated 30.1.2004 directing the petitioner to file an appeal against the demand notices in view of the provisions of Section 12 (2) of the Act, 1979. It appears that appeal of the petitioner was not decided and the statutory authorities tried to make the recovery of entertaining tax, and for that purpose they issued sale proclamation dated 13.11.2003. Being aggrieved, petitioner filed Writ Petition No. 15082 of 2004 raising the grievance that on one hand the appeal is not being decided, on the other hand recovery is being made. Therefore, the sale proclamation be quashed. On being confronted, Shri W. H. Khan, learned counsel for the petitioner could not satisfy the Court as under what circumstances if there was no order of tax exemption in favour of the petitioner the tax had not been deposited, and in such an eventuality under what statutory provision the appeal was maintainable for the reason that the appeal under the Act, 1979, is provided in case the amount of tax is disputed or being recovered in spite of the exemption order.