TMI Blog2013 (2) TMI 794X X X X Extracts X X X X X X X X Extracts X X X X ..... rity i.e. the Commissioner of Entertainment Tax by his order dated 29.09.2007. Petitioner, therefore, approached this Court by filing Special Civil Application No. 1920 of 2008 and apparently raised two contentions. Firstly, that the cinema hall is situated at a distance beyond five kilometers from Ankleshwar town. The rate for computation of the tax was, therefore, wrongly applied. The second contention was that sudden jump of the rate from ₹ 8,000/- to ₹ 44,925/- per week was without any basis. 2.2 This Court on 05.05.2008 partially allowed the petition. With respect to the question of location of the cinema hall, it was held that the issue is already closed against the petitioner. However, with respect to the revision in the rate of the tax, the Court held and observed as under: 5. Mr.Pushpadatta Vyas for the petitioner, however, submits hat the authorities have erred in not considering the correct figure about the population of village Bhadkodra. No such contention appears to have been raised before the authorities. Mr.Vyas, however, submits that the amount of consolidated tax which was earlier determined by the Competent Authority and Mamlatdar, Ankleshwar at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w order on 13.09.2009. In such order, he recalled his order dated 22.09.2008 and reinstated the earlier order dated 20.06.2008. In short, he reinstated his first order assessing the tax of the petitioner ranging between ₹ 11,156/- to 14,617/- per week. 2.5 On 22.07.2010, the Prescribed Officer issued a communication to the petitioner in which it was stated that for the period between 01.04.2005 and 30.09.2005, entertainment tax at the rate of ₹ 12,836/- per week should be paid. Such order, however, was placed before the Collector for his approval. The Collector did not grant his approval. The petitioner should, therefore, deposit tax @ ₹ 44,925/- per week. The difference should be deposited with the Government within seven days. 2.6 Once again, without any further proceedings pending before the Prescribed Officer, he passed a fresh detailed order on 26.05.2011. In such order, he confirmed the tax demand @ 44,925/- per week for the said period. He observed that the petitioner had already previously paid ₹ 3,67,718/- for the said period against total demand of ₹ 11,57,297/-. The petitioner should, therefore, make good shortfall of ₹ 7,89,579/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd without assigning any reasons, such order was passed on 22.09.2008. 4. To our mind, this procedure was completely impermissible in law. Once the Prescribed Officer passed an order of assessment, as provided under Sections 8 or 9 of the Entertainment Tax Act, as the case may be, it was, thereafter, not open for him to recall such order. The law does not recognize any such authority in the Prescribed Officer. Petitioner challenged such order before the Appellate Authority. The Appellate Authority instead of striking down the order in entirety, permitted the Prescribed Officer to pass fresh order. This itself, in our view, was wholly impermissible. The Appellate Authority should have seen that the Prescribed Officer could not have recalled his quasi judicial order without any reason and without any basis in law. 5. The absurdity does not end here. In the remanded proceedings, once again Prescribed Officer took the same stand as he had done in the order dated 20.06.2008. He, in fact, passed an order recalling the subsequent order dated 22.09.2008 and reinstating order dated 20.06.2008. He in essence passed a fresh order of assessment at a lower rate and not at the rate of S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or an appeal against any decision of the Prescribed Officer under Section 8 or 9 of the Act. Section 13 pertains to revision. Sub section (1) of Section 13 provides that the State Government may, on its own motion, or an application of any aggrieved proprietor made within ninety days from the date of the order, call for and examine the record of any proceeding under the Act for the purpose of satisfying itself as to the legality or the propriety of any order passed by the Prescribed Officer, or the appellate authority and if it is found that such order is required to be modified, annulled or reversed, may pass such order as the circumstances of the case justify. 8. From the above provisions it can be seen that the Gujarat Entertainments Tax Act makes detailed provisions for assessment of the entertainments tax. It also provides for re-assessment, in case, such tax has escaped assessment. Any such order passed by the Prescribed Officer is subject to appeal by the aggrieved person. Suo motu revisional powers can also be exercised by the Government. However, none of these provisions or any other provision in the said Act would empower the Prescribed Officer either to recall his own ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y it should adjudicate. It may by specific provisions lay down the principles which have to be followed by the Tribunals in dealing with the said matters. The scope of the jurisdiction of the Tribunals constituted by statute can well be regulated by the statute and principles for guidance of the said tribunals may also be prescribed subject of course to the inevitable requirement that these provisions do not contravene the fundamental rights guaranteed by the Constitution. But what law and the provisions of law may legitimately do cannot be permitted to be done by administrative or executive orders. (ii) In case of The Purtabpur Company Ltd. v. Cane Commissioner of Bihar and ors. reported in AIR 1970 Supreme Court 1896, the Supreme Court observed as under: 14. The executive officers entrusted with statutory discretions may in some cases be obliged to take into account considerations of public policy and to some context the policy of a Minister or the Government as a whole when it is a relevant factor in weighing the policy but this will not absolve them from their duty to exercise their personal judgment in individual cases unless explicit statutory provision has been made f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... does not in any way interfere with the discretion of officers, the impugned Standing Order has to be read and understood accordingly. 11. From the affidavit-in-reply, we notice that the stand of the respondent is that the assessment made by the Prescribed Officer was not as per the prevailing rates prescribed under different notifications and circulars issued by the competent authorities. That they laboured under a belief that power of reassessment under Section 9 of the Entertainment Tax Act was permissible. We have two serious objections to this stand. Firstly, once the assessing officer, in the present case the Prescribed Officer, passed his order of assessment, the same could be subject matter either of appeal or revision, as prescribed under the Act or reassessment within the bounds of Section 9 of the Entertainment Tax Act. However, in the present case, neither of these two recourses have been taken. The Prescribed Officer has not passed any order calling for reassessment of previously closed assessment. If so, the same was subject to outer time limit of three years from the end of the period when the tax fell due. He simply passed a fresh communication after framing the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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