Vikky vs State Of U.P. & Ors. on 4 August, 2010

Allahabad High Court
Vikky vs State Of U.P. & Ors. on 4 August, 2010
Court No. - 33

Case :- WRIT TAX No. - 1061 of 2010

Petitioner :- Vikky
Respondent :- State Of U.P. & Ors.
Petitioner Counsel :- Amol Ranjan,M.N. Singh
Respondent Counsel :- C.S.C.

Hon'ble Pankaj Mithal,J.

Petitioner is a cable operator.

The order of assessment was passed against him on 29.6.2009 under Section
12 of the Entertainment Tax Act, 1979 determining the entertainment tax of
Rs. 9,270/- for the month of May 2009 and imposing penalty of Rs. 20,000/-.
The aforesaid order was challenged in appeal which was dismissed vide order
dated 25th June 2010 by the Special Secretary, Sansthagat Vitta Kar Evam
Nibandhan respondent no. 2.

The aforesaid two orders have been challenged by the petitioner in the present
writ petition.

The first argument of the learned counsel for the petitioner is that assessment
order was passed without affording reasonable opportunity of hearing to the
petitioner and as such can not be sustained.

On the basis of the survey a show cause notice was issued to the petitioner
and the petitioner in response to the same has asked for the list of customers
which was duly supplied and the petitioner was given time to file objections
by 29.6.2009. However, the petitioner failed to file any reply and the
assessment order was passed. The order categorically states that no reply was
filed by the petitioner within time provided.

In this view of the matter, it can not be said that the petitioner was not
afforded any opportunity before passing the assessment order. Actually, the
petitioner failed to avail the opportunity given.

Learned counsel for the petitioner next argued that the imposition of penalty
is arbitrary for which no reasons have been assigned.

A perusal of the order do indicates that for imposing penalty no reason has
been recorded. Authorities have not even recorded that there was any attempt
on part of the petitioner to evade payment of tax. In this view of the matter,
the order of penalty can not be sustained. The appellate authority has also not
applied his mind to the above aspect.

Accordingly, petition is partly allowed. The order imposing penalty is
quashed and that with regard to levy of entertainment tax is maintained. The
order of assessment dated 29.6.2009 stands modified to the above extent.

However, with regard to number of cable connections operating as the order is
ex-parte it would be open to the petitioner to dispute the same for the future
periods on merits and the finding recorded in the impugned order would not
come in the way of the petitioner.

Petition stands partly allowed as aforesaid.

Order Date :- 4.8.2010

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