M/S Sri Kumari Theatre v. The Joint Commissioner Of
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATE: 29.06.2016
CORAM
THE HONOURABLE MR.JUSTICE T.S.SIVAGNANAM W.P.No.34811 of 2004 & W.P.M.P.No.42007 of 2004 M/s.Sri Kumari Theatre By its Proprietor Mr.G.Balaiah Naidu Son of Govindasamy No.5, Nagalapuram Road Uthukottai Taluk Tiruvallur District .. Petitioner Vs.
1. The Joint Commissioner of Commercial Tax IV Office of the Special Commissioner of Commercial Tax, Ezhilagam Chennai - 5
2. The Deputy Commissioner (CT) Chennai (South) Division Greams Road, Chennai - 86
3. The Asst. Commissioner (CT) Kancheepuram Kancheepuram District 4.The Entertainment Tax Officer (ETO) Tiruvellure Tiruvellure District
5. The Collector of Chengai M.G.R.District Office of the Collector's Office Kancheepuram .. Respondents Prayer: This Writ Petition is filed under Article 226 of the Constitution of India, seeking for a Writ of Certiorari calling for the records on the file of the 1st respondent made in proceedings R.P.No.JJ 2/ET/162/2003 dated 31.8.2004 pursuant to the orders passed by the 4th respondent made in Proceedings B2/Rc/2515/2000 dated 09.10.2000 and quash the order of the 1st respondent dated 31.08.2004.
For Petitioner : Mr.V.Balakrishnan For Respondent : Mr.Manoharan Sundaram Additional Government Pleader
O R D E R
Heard Mr.V.Balakrishnan, learned counsel for the petitioner and Mr.Manoharan Sundaram, learned Additional Government Pleader appearing for the respondents.
2. The petitioner has filed this writ petition challenging the order passed by the Joint Commissioner (second revisional authority), who has rejected the revision petition by order dated 31.08.2004, which was filed challenging the order passed by the Original Authority dated dated 09.10.2000, confirming the order of the Revisional Authority, namely Deputy Commissioner (CT), Chennai (South) Division dated 25.04.2003, who refused to interfere with the Assessment made under the provisions of the Tamil Nadu Entertainment Tax Act, 1939.
3. The short issue which falls for consideration is, as to whether the fourth respondent would be justified in demanding Entertainment Tax for the entire seating capacity for the period 1993-94 to 16.07.2000 without considering the fact that the petitioner had closed down the Balcony on 24.09.1993 pursuant to his application dated 13.08.1993 given to the Licencing Authority, namely the fifth respondent. The only reason for confirming the assessment by both the authorities is by stating that though the petitioner had made an application for surrendering the Balcony seats, orders were passed by the Licencing Authority only on 29.06.2000 and therefore, the petitioner had to pay the Entertainment Tax till the said date.
4. To examine as to whether this finding is correct, the facts of the case shall be gone into. The petitioner addressed a letter to the Collector on 13.08.1993 seeking permission to close down the Balcony. Accordingly, a direction was issued to the Tahsildar by the District Collector. The Tahsildar conducted an inspection, pursuant to which the Balcony was totally sealed and the seats were re-arranged. This is evident from the letter of the Tahsildar dated 13.09.1993. One more factor is that the petitioner addressed a letter to the Deputy Commercial Tax Officer on 29.09.1993 and surrendered the Balcony tickets. This fact is also not in dispute. Therefore, merely because the District Collector passed orders only on 29.06.2000 could hardly be a reason for the fourth respondent to disbelieve the stand taken by the petitioner that they have closed down the Balcony w.e.f
24.09.1994. This important factual aspect of the matter has been totally lost sight of by both respondents 1 and 2. Therefore, the petitioner is entitled to succeed. Accordingly, the writ petition is allowed and the impugned order dated 31.08.2004 is set aside. No costs. Consequently, the connected miscellaneous petition is closed. Sd/- Assistant Registrar(CS III) //True Copy// Sub Assistant Registrar gpa To
1. The Joint Commissioner of Commercial Tax IV Office of the Special Commissioner of Commercial Tax, Ezhilagam Chennai - 5
2. The Deputy Commissioner (CT) Chennai (South) Division Greams Road, Chennai - 86
3. The Asst. Commissioner (CT) Kancheepuram Kancheepuram District 4.The Entertainment Tax Officer (ETO) Tiruvellure Tiruvellure District
5. The Collector of Chengai M.G.R.District Office of the Collector's Office Kancheepuram 1 cc to The Special Government Pleader(T), sr.36678 W.P.No.34811 of 2004 & W.P.M.P.No.42007 of 2004 mp co kra 22.07.2016