BOBBY RESTAURANT Vs. STATE OF U P

JUDGEMENT

(1.) -By means of this writ petition the petitioners have challenged the order dated 11-1-1988 passed by the Collector, Aligarh under section 12 of the U. P. Entertainment and Betting Tax Act, 1979 (hereinafter referred to as U. P. Act No. 28 of 1979) levying a demand of Rs. 1,35,555/- under the said Act as well as a penalty of Rs. 2,000/- and affirmance of the said order in appeal by the State Government vide its order dated 1-6-1988 copies of which have been filed as Annexures-1 and 2 to the writ petition. The said assessment order has been passed by the Collector Aligarh on the ground that the petitioners were exhibiting for shows of films every day to the general public in their restaurant with effect from 23-12-1986 and were obtaining payment for exhibiting the said films. It was also found that the petitioners had managed to place certain eatables on some tables by way of pretext but on the spot no body was found taking any food. On 28-7-1987 the Assistant Commissioner Entertainment Tax Bulandshahr during the course of his inspection had found that a film was being repeatedly exhibited in the restaurant from 9 A. M. till 10 P. M. at night. After giving an opportunity to the petitioners, the Collector found that the plea of the petitioners that the films were only shown to the customers of the assessee was not found to be correct. All the arrangements that were found at the spot were such as they concerned a cinema show. Further finding has been recorded by the Collector that the restaurant was being used not only for exhibition of the films but for evading entertainment tax due against the petitioners. It was also held that the said activity amounted to ' entertainment', within the meaning of U. P. Act No. 28 of 1979 and as such the petitioners are liable to pay the said tax which was being sought to be recovered from the petitioners. In the impugned order the District Magistrate has also set out in detail the reasons as to how he has worked out the demand of Rs. 1,35,555/-. The State Government affirmed the said findings of the District Magistrate, Aligarh and has dismissed the appeal filed by the petitioners. Aggrieved against the same the petitioners have preferred the present writ petition in this Court.

(2.) I have heard learned counsel for the petitioners The first submission made by the learned counsel for the assessee is that although an application for licence was given by the petitioners yet no licence was issued by the District Magistrate. It has been mentioned in the impugned orders that the District Magistrate could not issue licence to the petitioners because the petitioners had not specified certain details which were necessary for issuing the licence in question. The learned counsel for the petitioners has, during the course of his arguments laid emphasis on the fact that despite an application having been made by the petitioners no licence was granted by the District Magistrate. I am afraid this contention has got no relevance as regards the conduct of the petitioners for the exhibition of the films and their liability under the aforesaid U. P. Act No. 28 of 1979.

(3.) IN view of the above authority and the finding arrived at by the authorities below in their impugned orders, in my opinion the activity of the petitioners amounted to " entertainment" within the meaning of U. P. Act No. 28 of 1979.