RAJKUMAR Vs. ASSISTANT COMMISSIONER EXCISE, UJJAIN

JUDGEMENT

(1.) This order shall also govern the disposal of Misc. Petitions Nos. 3864 of 1985, 3867 of 1985 and 3096 of 1985. All these writ petitions raise indentical questions and are, therefore, being decided by a common order. The petitioners in each of these four writ petitions are proprietors of cinema houses and are liable to pay entertainment duty under the M.P. Entertainment Duty and Advertisement Tax Act, 1936 (hereinafter referred to as the Act.).

(2.) THE facts of writ petition No.3851 of 1985 are that the Assistant Commissioner Excise Flying Squad, Ujjain Division, Ujjain, made an inspection of the cinema house of the petitioner on 18th June 1985 along with some of the subordinate officers. It was discovered that the petitioner had evaded entertainment duty. Consequently, after giving a notice to show cause to the petitioner, the Assistant Commissioner Excise Flying Squad passed an order dated 31st October 1985 (Annexure -6) making a best judgment assessment and also imposing a penalty on the petitioner under section 4 -C of the Act. A similar inspection was made by the Assistant Commissioner Excise Flying Squad on 8th May 1985 of the cinema house of the petitioner of M.P. No.3867 of 1985 and after giving the petitioner a notice to show Cause, an order making a best judgment assessment and imposition of penalty was passed by the Asstt. Commissioner Excise Flying Squad on 31st October 1985. In the Case of the petitioner of M.P. No.3864 of 1985, however, inspection of the cinema house was made on 1st July 1985 by the Sub -Inspector Excise. Subsequently, on the basis of the inspection report and other record, a notice to show cause was issued by the Assistant Commissioner Excise to the petitioner and order of best judgment assessment and imposition of penalty was passed on 28th October 1985 under Section 4 -C of the Act. The facts of M.P. 3096 of 1985 are that inspections in this case were made by the Excise Sub -Inspector whereas orders of assessment and imposition of penalty under section 4 -C of the Act had been made by the District Excise Officer, Ujjain. It is these various orders which have been challenged in these four writ petitions.

(3.) IN our opinion, it is difficult to hold that section 4 -C of the Act is ultra vires merely because it uses the words period not exceeding thirty days immediately preceding". In a case where entertainment duty has been evaded and a best judgment assessment is to be made, such judgment obviously has to be made on the basis of such matter as may be available on record. The primary evidence in all such cases is the return which is required to be filed by the proprietor of a cinema house giving the details on the basis of which entertainment duty is to be calculated. In those cases, where a proprietor of a cinema house fails to file a correct return as contemplated by the Act with a view to evade entertainment duty, the primary evidence is not available and apparently a best judgment assessment bas to be passed on the basis of such other evidence as may be gathered by the authorities concerned It is settled law that in the matter of making a best judgment assessment, some element of guesswork is inevitable. It is so for the simple reason, as already indicated above, that when the evidence stands suppressed by the assessee, best judgment assessment bas to be made on the best evidence.