PRAKASH TALKIES Vs. DISTRICT EXCISE OFFICER

JUDGEMENT

(1.) PETITIONER No. 1 M/s. Prakash Talkies is a partnership firm duly registered under the Partnership Act and carries on business of exhibition of cinematographic films at a cinema named "prakash Talkies" at Indore. Prakash, petitioner No. 2 is the managing partner of petitioner No. 1. The petitioners have to pay entertainment duty under the Madhya Pradesh Entertainment Duty and Advertisement tax Act, 1936 (hereinafter referred to as "the Act") to the State of Madhya Pradesh. Section 4 of the Act deals with method of levy. Clause (b) of sub-section (2) of Section 4 of the Act provides that the State Government may, on the application of a proprietor of any entertainment, in respect of which entertainment duty is payable under Section 3, allow such proprietor to pay by one of the modes specified hereunder as it may think fit, in such manner and subject to such conditions as may be prescribed, the amount of the duty due, namely :- (a ). . . . . . . . . ' (b) in accordance with returns of the payments for admission to the entertainment and on account of the duty. The petitioners made an application to the District Excise Officer, Indore (respondent no. 1 for granting them the facility of making payment of entertainment duty in the manner provided by Section 4 (2) (b) of the Act. That facility was denied to the petitioners by order dated 31st March, 1986, a copy whereof has been filed as annexure 'f' to this writ petition, on the ground that the petitioners were not entitled to the grant of such a facility. It is this order, which is sought to be quashed in the present writ petition.

(2.) A return has been filed on behalf of the respondents. The justification for passing the impugned order is to be found in paragraphs 8 and 9 of the return. In substance, the case of the respondents is that the facility of payment of entertainment duty, as contemplated by Section 4 (2) (b) of the Act, was denied to the petitioners inasmuch as they committed three offences in the financial year immediately preceding the year for which application under clause (b) of sub-section (2) of Section 4 of the Act had been made.

(3.) IT has been urged by the counsel for the petitioners that since it was not in dispute that all the three offences referred to in paragraphs 8 and 9 of the return have been compounded, facility contemplated by section 4 (2) (b) of the Act could not be denied to the petitioners on the basis of those offences. Reliance, in support of this submission, has been placed by the counsel for the petitioners on sub-section (2) of section 5 A of the Act, which provides that on the composition of the offence, no further action in respect thereof shall be taken against the person accused of it and if any proceedings have already been instituted against him in any court, the composition shall have the effect of an acquittal of such person. For the respondents, on the other hand, it has been urged by their counsel Shri kulshrestha, that the impugned order was justified in view of the provisions contained in rule 16 (2) (c) of the Madhya Pradesh Entertainment Duty and Advertisement Tax rules, 1942, as amended by the notification dated 304-1983 published in the Madhya pradesh Rajpatra dated 1-5-1983. The said rule 16{2) (c), as amended by the aforesaid notification, reads as follows :