SESH MAHAL Vs. COMMISSIONER OF COMMERCIAL TAXES

JUDGEMENT

(1.) The Special Appeal is filed against the order of the Commissioner of Commercial Taxes dated 13-3-1989 whereunder he refused to interfere in the revision petition filed by the appellant under Section 9(C) of the A.P. Entertainment Tax Act, against an order passed by the Deputy Commissioner(CT), Eluru dated21-8-1985.

(2.) The appellant is the proprietor of a cinema theatre Sesh Mahal in Ganapavaram Village which has a population of 8888 according to 1971 Census. The appellant entered into an agreement with the department agreeing to pay a weekly tax of Rs. 1218.66 ps for the period commencing from 8-8-1981 to 27-9-1982 i.e., at the rate of 11 per cent under a bona fide mistake that the population of Ganapavaram was more than 10,000 as per 1981 Census. Later this Court in Writ Petition Nos. 619 to 623 of 1983 directed that 1981 Census cannot be taken note of inasmuch as the Census figures of 1981 were published only on 19-10-1982, and therefore, the said Census figures cannot be acted upon prior to the date of publication. If the Census figures of 1971 were adopted, the tax would be payable at the rate of 9 per cent instead of 11 percent Therefore, the appellant filed a.revision petition before the Deputy Commissioner for reduction of the weekly tax on 25-4-1982 while the agreement referred to above was inforce. As the said revision petition was dismissed, the appellant carried the matter in revision before the Commissioner of Commercial Taxes. The learned Commissioner dismissed the said revision holding that the appellant has a right of appeal under Section 9-B of the A.P. Entertainment Tax Act, for short 'the Act', and without resorting to the remedy of appeal, the appellant had filed the revision petition on 5-9-1988/.e.,after a lapse of 3 years without explaining the reason for the said inordinate delay and that the weekly tax as per the agreement cannot be altered during the subsistence of the agreement Hence, this appeal.

(3.) Sri Raji Reddy, the learned Counsel for the appellant vehemently contended that the learned Commissioner ought to have held that the revision is maintainable at the instance of the assessee. He relies upon a Divisional Bench judgment of this Court reported in G/V/c&Co. v. Commr. of Comml. Taxes (1) 65 STC 232. The Special Leave Petition filed against that judgment was dismissed. No doubt, this Court following the view taken by the Supreme Court in Board of Revenue v. Raj Brothers Agencies (2) 31 STC 434 held that in the absence of any words limiting the exercise of the power of revision at the instance of the assessee, it is not possible to hold that it is not open to the assessee to invoke the said power of revision under Section 20 of the Act. It was however clarified that the Commissioner was not bound to exercise the power as and when it is invoked by the assessge. The same view was reiterated in Bombay Ammonia Pvt. Ltd. v. State of T.N. (3) 37 STC 517. Following the said decisions, it has to be held that under Section 20 of the Act, revisionis maintainable not only at the instance of the revenue but also at the instance of the assessee, though suo motu revision provided for. The provisions considered therein are similar to Section 9-C of the A.P.Entertainment Tax Act. The learned Government Pleader relying on a decision of the Supreme Court in State of A.P. v. Lakshmaiah Setty & Sons (4) 94 STC 190, contends that the revision is maintainable only if the order under revision is adverse to the revenue and not at the instance of the assessee. In that case, the Supreme Court was considering the scope of Section20 of the Act, as amended by Act 18 of 1985. The amended Section reads as follows: