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TMI Blog2011 (4) TMI 1231X X X X Extracts X X X X X X X X Extracts X X X X ..... he Act whereupon he can be allowed to make consolidated payment of tax by compounding tax as per the provisions of the said section. According to the petitioner, the theatre of the petitioner was located in the designated area as contemplated under section 6 of the Act. It, therefore, applied on December 31, 1988 for allowing it to make consolidated payment of tax instead of payment under section 3(1) of the Act by compounding the tax payable in respect of the entertainment for fixed sum by calculating as per the provisions of section 6 of the Act. Subsequently, the Act came to be amended on December 23, 1988 pursuant to which, the petitioner made another application on January 4, 1989 to the respondent No. 2 for allowing the petitioner to make consolidated payment of tax as per section 6 as amended by the Amendment Act which came into force from December 23, 1988. Respondent No. 2-the mamlatdar and prescribed officer decided the first application made by the petitioner without considering the amended provisions thereof and passed an order dated January 5, 1989 holding that the petitioner's cinema is in the designated 1Oral. area and consolidated payment of tax and fixed sum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (1) of the Act took the order dated January 5, 1989 passed by respondent No. 2 in revision. After hearing the petitioner, respondent No. 1 passed an order dated February 6, 1993 setting aside the order dated January 5, 1989 passed by respondent No. 2 and holding that the petitioner's cinema did not fall within the designated area and as such, the petitioner had wrongly availed of the benefit of consolidated entertainment tax. Being aggrieved, the petitioner has approached this court challenging the notice issued under section 13(1) of the Act as well as the order passed pursuant thereto. Mr. V.J. Dave, learned advocate appearing on behalf of the petitioner has assailed the impugned order submitting that sub-section (2) of section 13 of the Act provides that no order shall be revised under sub-section (1) after the expiry of two years from the date of such order. The State Government is thus, empowered to exercise jurisdiction if at all it wants to do so within the prescribed period of limitation. If the State Government attempts to exercise powers under section 13(1) of the Act after the expiry of the prescribed period of limitation of two years, it would amount to exercise o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e further submitted that sub-section (2) of section 13 of the Act prescribes the outer-limit for deciding the revision application and not for initiation of revisional proceedings and that in the present case, even the initiation of revisional proceedings is beyond the period of limitation. It was submitted that in the circumstances, on this ground alone, the impugned order passed by the revisional authority deserves to be quashed and set aside. On the other hand, Ms. Maithili Mehta, learned Assistant Government Pleader, vehemently opposed the petition submitting that in the present case, initially the order dated January 5, 1989 passed by the prescribed officer was subject-matter of appeal before the Collector, who by an order dated February 21, 1989, allowed the appeal and remanded the matter to the mamlatdar and prescribed officer. It was submitted that thereafter, pursuant to the notice dated March 2, 1989 issued by the mamlatdar, the petitioner had preferred Regular Civil Suit No. 76 of 1989 in the court of the learned Civil Judge (Senior Division) at Morvi, wherein the court had passed an order directing the defendant No. 2 therein, namely, the prescribed officer and mamlatd ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ovember 14, 1991 and as such, till then the revisional authority could not have passed any order in the revision proceedings. It was, accordingly, submitted that the entire period as aforesaid is required to be excluded while computing the period of limitation as prescribed under section 13(2) of the Act and as such, it cannot be said that the impugned order is barred by limitation. Having regard to the submissions advanced by the learned advocates for the respective parties, it is apparent that the main ground on which the impugned order has been challenged is that the proceeding under section 13 of the Act was barred by limitation. It would, therefore, be necessary to refer to the provisions of section 13 of the Act which makes provision for "revision of orders" and insofar as the same is relevant for the purpose of the present petition, reads as under: "13. (1) The State Government may, of its own motion or on application of any aggrieved proprietor made within ninety days from the date of order call for and examine the record of any proceeding under this Act for the purpose of satisfying itself as to the legality or propriety of any order passed therein by the prescribed offi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oceeding wherein an appeal is pending against the order of the prescribed officer or till the time-limit prescribed for filing an appeal has expired. Sub-section (2) of section 13 of the Act, which is relevant for the purpose of the present petition, lays down that no order shall be revised under sub-section (1) after the expiry of two years from the date of such order. From the language employed in the provision, it is apparen that the same provides for an outer-limit for passing an order under section 13 of the Act inasmuch as the same says that no order shall be revised under sub section (1) after the expiry of two years from the date of such order. The said provision does not say that no notice shall be issued under section 13 of the Act after the expiry of two years from the date of the order of the prescribed officer. The aforesaid intention of the Legislature to circumscribe the outer time-limit for revising an order becomes more clear when one reads the Explanation to sub-section (2) of section 13 of the Act which lays down that in computing the period of limitation for the purpose of sub-sections (2) and (3) of section 13, (a) any period during which the record of any proc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ision), Morvi, by an order dated March 30, 1989 directed defendant No. 2, the prescribed officer and mamlatdar to maintain status quo regarding Zanjhar Cinema being in the designated area as per its order dated January 5, 1989 up to April 3, 1989. Subsequently, by an order dated April 18, 1989, the status quo was directed to be continued till the final disposal of the suit. The suit, ultimately came to be dismissed by an order dated September 24, 1990. On behalf of the petitioner, it has been contended that the order of status quo was directed against the prescribed officer and mamlatdar and not against respondent No. 1 and as such respondent No. 1 was in no manner restrained from taking the order dated January 5, 1989 passed by the prescribed officer and mamlatdar in revision. Hence, respondent No. 1 is not entitled to the exclusion of the said period during which the order of status quo was operating while computing the period of limitation. On the other hand, on behalf of the respondents, it has been contended that in the light of the order of status quo, it would not have been proper for respondent No. 1 to initiate the revision proceedings. After the aforesaid civil suit came ..... X X X X Extracts X X X X X X X X Extracts X X X X
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