2011 (4) TMI 1231 - HC - Indian Laws

Notice dated July 1 1981 issued by the Deputy Secretary Information and Broadcasting Department (annexure F to the petition) as well as the order dated February 6 1993 (annexure H to the petition) passed by him in exercise of powers under section 13 of the Gujarat Entertainments Tax Act 1977 challenged Held that - It is apparent that from September 24 1990 when the Regular Civil Suit No. 76 of 1989 came to be dismissed there was no order of status quo or any other order operating against the respondent No.1 restraining it from exercising powers under section 13 of the Act. Computing the period of limitation of two years from September 24 1990 till the date of passing of the impugned order that is February 6 1993 evidently the same has been passed much after the expiry of period of two years from the date of the order of the prescribed officer as prescribed under sub-section (2) of section 13 of the Act. The impugned order dated February 6 1993 passed by respondent No. 1 is therefore clearly barred by limitation and as such cannot be sustained. In the circumstances without going into the merits of the impugned order the same is required to be set aside on the ground of being barred by limitation alone. Appeal allowed.

Issues Involved:
1. Challenge to the notice dated July 1, 1981.
2. Challenge to the order dated February 6, 1993.
3. Application of Section 13 of the Gujarat Entertainments Tax Act, 1977.
4. Limitation period under Section 13(2) of the Act.
5. Exclusion of periods under the Explanation to Section 13(2) of the Act.

Issue-wise Detailed Analysis:

1. Challenge to the Notice Dated July 1, 1981:
The petitioner challenged the notice issued by the Deputy Secretary, Information and Broadcasting Department, under Article 226 of the Constitution of India. The notice was related to the revision of an order passed by the prescribed officer under the Gujarat Entertainments Tax Act, 1977.

2. Challenge to the Order Dated February 6, 1993:
The petitioner also challenged the order passed by the Deputy Secretary on February 6, 1993, which set aside the order dated January 5, 1989, by the prescribed officer. The Deputy Secretary held that the petitioner's cinema did not fall within the designated area and thus wrongly availed the benefit of consolidated entertainment tax.

3. Application of Section 13 of the Gujarat Entertainments Tax Act, 1977:
The petitioner argued that under Section 13(2) of the Act, no order shall be revised after the expiry of two years from the date of such order. The State Government issued the show-cause notice on July 1, 1991, which was beyond the two-year limitation period from the prescribed officer's order dated January 5, 1989.

4. Limitation Period under Section 13(2) of the Act:
The main contention was whether the show-cause notice and subsequent order were barred by limitation. The petitioner argued that the limitation period should be calculated from February 21, 1989, the date when the Collector decided the appeal, making the show-cause notice dated July 1, 1991, beyond the two-year limit.

5. Exclusion of Periods under the Explanation to Section 13(2) of the Act:
The respondents argued that the period during which the status quo order by the Civil Judge (from March 30, 1989, to September 24, 1990) was in effect should be excluded from the limitation period. Additionally, the period during which the appeal was pending (until March 30, 1991) should also be excluded.

Court's Analysis:
The court examined Section 13 of the Act, which allows the State Government to revise orders within two years. The court noted that the limitation period is the outer limit for passing a revision order, not for initiating proceedings. The period during which the record cannot be called for due to pending appeals or injunctions must be excluded.

The court found that from September 24, 1990 (when the civil suit was dismissed), there was no order restraining the State Government from exercising its powers. Therefore, the period from September 24, 1990, to February 6, 1993 (when the impugned order was passed), exceeded the two-year limitation period.

Conclusion:
The court concluded that the impugned order dated February 6, 1993, was barred by limitation and could not be sustained. The petition was allowed, and the impugned order was quashed and set aside. The rule was made absolute with no order as to costs.

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