TMI Blog1987 (9) TMI 409X X X X Extracts X X X X X X X X Extracts X X X X ..... or the whole year was 4,909 units and taking 11 units as to consumption per show, the number of shows conducted should have been 446. Finding therefore, that tax was not paid for 259 shows, he determined the liability of the petitioner-appellant at the rate of Rs. 71 per show which came to Rs. 18,389. In arriving at this conclusion, he referred to the figures available in the survey report of the Statistical Inspector, Kancheepuram, who had carried out a survey on 21st February, 1981, to determine the consumption of electrical energy per show. The Deputy Commercial Tax Officer also found that the usual length of Tamil feature film was 14,000 to 15,000 ft. and the normal consumption per show should, therefore, work out to 11 units. He obtained the figures of consumption from the Assistant Accounts Officer, Tamil Nadu Electricity System, Tiruttani. An appeal came to be filed by the petitioner-appellant against the order of the Deputy Commercial Tax Officer before the Assistant Commissioner which came to be decided by him on 2nd May, 1984. The Assistant Commissioner also found that the case of the petitioner-appellant that he was running only 3 to 4 shows a week had to be rejected. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e said Table, "there shall be levied and paid to the State Government, a tax at the rate specified in the corresponding entry in column (3) thereof ". In the Table, the first column refers to "local areas", the second column refers to the kind of the theatres such as permanent and semi-permanent or temporary (touring) and open air theatres and the rate of tax which is given in terms of percentage of the gross collection capacity for every show is specified in column (3). Section 5-A requires the proprietor of a cinematograph exhibition who is liable to pay tax under section 5-A or who opts to pay tax under section 5-B, with which we are not concerned, to submit a return relating to the actual number of shows held by the proprietor in a week to the prescribed authority in such manner and within such period as may be prescribed. There is also an obligation on the part of the proprietor to give prior notice to the prescribed authority of any proposed variation in the gross collection capacity per show in respect of the place of entertainment. Under section 5-A(3)(b) it is provided that if the prescribed authority is satisfied that any return submitted under clause (a) is correct and c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt. The authority prescribed is the authority to whom the returns are to be submitted. It is now necessary to refer to section 5-C which reads as follows: "(1) No tax or additional surcharge shall be payable under sections 4, 4-A, 4-B or 4-C of this Act and no surcharge shall be payable under the Tamil Nadu Local Authorities Finance Act, 1961, by any proprietor of a cinematograph exhibition held in the theatres specified in column (2) of the Table under section 5-A or 5-B, and located in the local areas specified in the corresponding entry in column (1) of the said Table. (2) The State Government may make rules whether prospectively or retrospectively for carrying into effect the provisions of sections 5-A and 5-B. Such rules shall also provide for the issue of tickets for admission and the manner in which and the conditions subject to which a ticket may be issued. (3) The provisions of this Act (other than sections 4, 4-A, 4-B, 4-C, 6 and 7) and of the rules made thereunder shall, so far as may be, apply in relation to the tax payable under section 5-A or 5-B, as they apply in relation to the tax payable under section 4-A." Sub-section (1) of section 5-C is really in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e in so far as the construction of section 5-C(3) is concerned. Section 4-A provides for an additional tax on cinematograph exhibition. It refers to the rate of additional tax. It also provides for the manner in which the tax is to be calculated. Subsection (2) of section 4-A then provides that the tax levied under subsection (1) shall be recoverable from the proprietor. Then there is a provision in sub-section (3) of section 4-A which reads as follows: "The provisions of this Act other than sections 4, 6, 7 and 13 shall, so far as may be, apply in relation to the tax payable under subsection (1) as they apply in relation to the tax payable under section 4." The purpose of sub-section (3) of section 4-A therefore, appears to be similar to the purpose with which section 5-C(3) was enacted. The pattern which seems to have been adopted by the Legislature is that instead of amending section 7-B, after section 5-C was added, provision was made in section 5-C itself by enacting section 5-C(3) so as to make the provision in section 7-B and other provisions applicable in case of tax payable under section 5-A or 5-B in the same manner as section 7-B and other provisions of the Act were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ens that current supply falls far below the usual voltage and on such occasions the output will necessarily be much lower than the normal rate. The efficiency of the crushing machine as also the moisture content in the copra would also be relevant factors to be taken into account in arriving at the output. It is, therefore, unsafe to uphold the rejection of the accounts purely on the ground that there has been divergence in the consumption of electricity." This decision will, therefore, show that the main question before the assessing authority was whether there could be a direct relationship between the output and the electrical consumption. The Division Bench pointed out that there would be many other circumstances which would account for a reduced output and on that ground alone, the account books which indicated the figures with regard to the output could not be rejected. That decision appears to us to be clearly distinguishable on facts. In the instant case, statistics have been produced on behalf of the department based on actual inspection of the theatre where readings were taken of a particular show and there was a regular computation and a decision on the question as t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as no presumption in law that an assessee having been found to have used duplicate tickets on one occasion must be presumed to have used such duplicates in earlier periods also and that also starting from number one of that serial. The Division Bench pointed out that the terminus a quo of the assessment period being a week, the material found in a week will by itself have no thrust in an earlier assessment period, that is to say, a week, without there being any incriminating material to show that it has been followed in the earlier assessment period as well. There is no reason to disagree with the view of the Division Bench. Merely because a proprietor had sold a duplicate ticket in one week, it cannot be held that he was doing so for the rest of the earlier part of the year and that is why the Division Bench held that the reassessment could be only in respect of a week. This decision, however, cannot be an authority for the proposition that if there was material to show that during the earlier period also some malpractices were taken recourse to, which had the effect of tax having escaped, there is no power under section 7-B to reassess tax for that period. Indeed, the Division Be ..... X X X X Extracts X X X X X X X X Extracts X X X X
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