9911796707
TMI Blog2011 (4) TMI 1031X X X X Extracts X X X X X X X X Extracts X X X X ..... preventing the respondents from implementing, effectuating or executing the impugned order, annexure F, or to make any recovery of the amount stated in the said order and further be pleased to restrain the respondents from claiming and/or recovering any amount in excess of the consolidated tax duly determined vide annexure F. (C) That an ex parte ad interim injunction in terms of paragraph 15B hereinabove may please be granted in favour of the petitioners. (D) That the costs of this petition may please be awarded from the respondents in favour of the petitioners. (E) That any other and further relief that may be deemed just and proper in the facts and circumstances of the case may please be awarded in favour of the petitioners." Petitioner No. 1 is a partnership firm registered under the Indian Partnership Act, 1934 and petitioner No. 2 is its partner. The petitioner-firm is a cinema run and managed by petitioner No. 2 for which a licence has been granted by the, respondent-authority under the provisions of the Gujarat Entertainments Tax Act, 1977 (the Act) and the Bombay Cinemas (Regulation) Act, 1953 and the Rules framed thereunder. The petitioner- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tioner-cinema was granted permission under section 6 of the Act and had already paid consolidated tax as and when it accrued. The petitioners being aggrieved by the said action of the respondent by issuing order dated November 18, 1991 (annexure F hereto) have filed the present petition. The petitioners also challenge the excess amount of Rs. 2,15,953.90 collected from the petitioners over and above the consolidated tax of Rs. 1,99,402.26. Heard Mr. Vandan K. Baxi, learned advocate, for Mr. K. H. Baxi, learned advocate appearing on behalf of the petitioners, and Ms. Maithili Mehta, learned Assistant Government Pleader, for the respondents. Mr. Baxi pointed out that the impugned order is absolutely bad and illegal and the same is passed without affording an opportunity of hearing to the petitioners and the same amounts to reassessment. It was pointed out that the petitioners have not availed of dual benefits. The infancy benefit which was granted by way of exemption under section 29 of the Act was availed of by the petitioners only for the year one and thereafter it has been discontinued from the date on which the petitioner opted for payment of entertainment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d upon resolutions of the State Government dated August 19, 1987, July 26, 1989 and August 18, 1989 and pointed out that Janta Cinema had availed of the benefit of exemption under section 29 of the Act and under no circumstance can be permitted to pay entertainment tax as a consolidated tax as provided under section 6 of the Act. Ms. Mehta further pointed out that after the said period of four years was over as prescribed under the notification issued under section 29 of the Act then and then only the benefit of payment of entertainment tax by way of consolidated tax can be availed of by Janta Cinema. It was further pointed out that no Janta Cinema can avail of both benefits, i.e., exemption under section 29 of the Act and the payment of entertainment tax as a consolidated tax as provided under section 6 of the Act. Therefore, it was pointed out that the order of recovery passed by the respondent-authority is legal and proper and the authorities have rightly recovered the amount of Rs. 2,15,953.19 from the petitioner. Reliance was placed upon the affidavit-in-reply dated February 24, 2010 and pointed out that the petitioners are entitled only to one benefit at a time and submitted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tive intention or on economic justification of inequitable burden or progressive approach of fiscal provisions intended to augment State revenue. But once exception or exemption becomes applicable no rule or principle requires it to be construed strictly. Truly speaking, liberal and strict construction of an exemption provision are to be invoked at different stages of interpreting it..." The petitioner-cinema had availed of benefit of Janta Cinema under notification dated December 11, 1979 for the first year from August 22, 1986 to August 21, 1987. However, on completion of one year the petitioner opted for payment of entertainment tax as provided under section 6(2) of the Act vide application dated August 22, 1987, which was scrutinized and vide order dated August 31, 1987 the competent authority under the entertainment tax allowed the said application and quantified the consolidated tax payable by the petitioner under section 6(2) of the Act. It also transpires from the record and which is not denied by the respondent-authority that on completion of the first year the petitioners have not availed of benefit of the exemption under section 29 of the Act granted as per notif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... celled with effect from December 23, 1988 as per amendment in the Act, in view of the fact that the very authority has also passed orders for the subsequent years under section 6 of the Act. We, therefore, find that the order, impugned in the present petition is passed in a mechanical manner and the same deserves to be quashed and set aside. This court in the case of Arman Cinema [1998] 3 GLR 1836 has held that both the benefits cannot be availed of together. However; in the instant case, the petitioners have not availed of both the benefits together. The petitioner-cinema has availed of benefit of the general exemption granted under section 29 of the Act for the first year and thereafter discontinued the same and applied for payment of entertainment tax as consolidated tax under section 6(2) of the Act. The authorities, after examining such application, granted permission to the petitioner under section 6(2) of the Act and the same is neither revoked nor rescinded. In the facts and circumstances of the case, as noted hereinabove, the petition is allowed. The respondents are directed to charge consolidated tax as per orders passed under section 6 of the Act. The res ..... 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