TMI Blog2001 (12) TMI 847X X X X Extracts X X X X X X X X Extracts X X X X ..... ht club. 2.. The West Bengal Entertainments and Luxuries (Hotels and Restaurants) Tax Act, 1972, hereinafter referred to as "the 1972 Act", provides for imposition of tax on entertainments and luxuries in hotels and restaurants. Provision for air-conditioning being a luxury under the aforesaid Act, the petitioner-company is required to pay luxury tax under section 4 of the Act in respect of the hotel and the restaurants therein, including the aforesaid night club. 3.. Clause (b) of section 2 of the 1972 Act, prior to its amendment by the West Bengal Finance Act, 1994, defined entertainment as follows: " 'entertainment' means any exhibition, performance, amusement, game, sport, cabaret dance or floor-show and includes performance by any singer, musician or bandsman provided in any hotel or restaurant." After amendment, clause (b) of section 2 of the 1972 Act reads as follows: " 'entertainment' means any exhibition, performance, amusement, game, sport, cabaret dance or floor-show provided in any hotel or restaurant." 4.. Section 3(1) of the 1972 Act provides that entertainment tax will be payable by every person who is admitted into or enters any place within an air-con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and stating that in terms of the said judgment the petitioner was liable to pay tax under section 3 of the 1972 Act and that it was required to clear its outstanding dues by March 31, 2001. 9.. By reason of such communication the petitioner understood that its representations to the State Government on the above issue stood rejected and since the petitioner was of the view that the judgment in the S.P Jaiswal Estate Limited case had no application to the petitioner's case, it filed an application before the West Bengal Taxation Tribunal under section 8 of the West Bengal Taxation Tribunal Act, 1987, challenging the legality of the levy of entertainment tax in respect of its night-club and the orders of assessment and notices of demand relating thereto, including the aforesaid communication dated March 22, 2001. The said application was moved before the learned Tribunal on June 15, 2001, when on behalf of the respondents it was contended that the application was barred by limitation in terms of sub-section (2) of section 8 of the 1987 Act. On behalf of the petitioner it was submitted that since its representations were pending decision before the State Government and the same mu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... whereupon the respondents demanded from the petitioner the alleged dues under section 3(1) of the 1972 Act for the period 1993-94 onwards. 14.. Mr. Bajoria submitted that this was a fit case where the learned Tribunal should have exercised its jurisdiction in considering the legal question raised on behalf of the petitioner regarding the applicability of the 1972 Act to the petitioner's night club. 15.. Appearing for the respondents, Mr. Tarun Kumar Roy, learned advocate, strongly urged that since the High Court was not exercising appellate powers over the orders of the Tribunal but was only exercising powers of judicial review, the High Court could not substitute its own findings for that of the Tribunal which had exercised its discretion subjectively in holding that the petitioner's application was barred by limitation. 16.. Mr. Roy urged that apart from making representations, the petitioner had not pursued its statutory remedies. The same had been taken note of by the Tribunal in holding that the petitioner's application was hopelessly barred by limitation. 17.. In support of his submission Mr. Roy referred to and relied on the decision of the honourable Supreme Court i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amounting to Rs. 2,14,83,742.80 up to 1997-98 in respect of the petitioner's night club, by March 31, 2001. 20.. Although, not spelt out in the letter, it is clear that the petitioner's representations to the State Government stood rejected on the basis of the said letter dated March 22, 2001, and a decision was taken to pursue the demands made in respect of the assessment orders for the period from 1993-94 to 1997-98. 21.. In keeping with the observations made by the honourable Supreme Court in Sudha Patil's case [1999] 235 ITR 118; (1998) 8 SCC 237 we are of the view that in arriving at the conclusion that the petitioner's application under section 8 of the 1987 Act stood barred by limitation, the learned Tribunal failed to consider in its true perspective the fact that the respondents had themselves chosen not to pursue its demands in respect of the assessments made for the period from 1993-94 onwards, till the decision of the Tribunal in the case of S.P. Jaiswal Estate Limited on February 23, 2001. 22.. We are of the view that since an important question of law is involved in the matter, the same should be considered and decided on the merits. 23.. We, therefore, all ..... X X X X Extracts X X X X X X X X Extracts X X X X
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