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Kamalammal Vs. Board of Revenue by the Commissioner of Commercial Taxes and anr. - Court Judgment

LegalCrystal Citation
SubjectOther Taxes
CourtChennai High Court
Decided On
Reported in(1964)1MLJ394
AppellantKamalammal
RespondentBoard of Revenue by the Commissioner of Commercial Taxes and anr.
Excerpt:
- .....7-a provides for the furnishing of returns and for assessing the proprietor on the basis of the returns. what a return is, is not specified in the main act itself but a return has to be furnished to such authority, in such manner and within such periods as may be prescribed. turning to the rules in this record, there are several methods of payment of tax envisaged by these rules and the one that we are concerned with is covered by part iii of the rules, which deals with payment of the tax on the basis of returns. rule 20 states that any proprietor who wishes to adopt that mode has to apply to the entertainments tax officer in advance of the entertainments specifying the place, date etc., and also the rates of payment for admission to it. after the furnishing of certain other.....
Judgment:
ORDER

K. Srinivasan, J.

1. The petitioner was running a touring cinema. For a period of three months from 1st April, 1959 she had obtained a licence for a particular site and for another period a fresh licence in respect of a different site. According to her, practically every week there used to be surprise inspections by the Commercial Tax Officer or other authority when the registers and records were examined. The petitioner was making her weekly returns as required according to the conditions of the permit in Form IV. On 26th March, 1960 a surprise inspection showed certain defects. It is not necessary to enter into that aspect of the matter. But following this inspection a notice was issued by the Deputy Commercial Tax Officer wherein he proposed to make a best judgment assessment in respect of two periods from 1st April, 1959 to 10th November, 1959 and again from 15th February, 1960 to 20th March, 1960. This best judgment assessment was presumably made for the reason that certain defects had been noticed at the inspection on 26th March, 1960, and that the authority was under the impression that the returns for other periods would also be tainted by similar defects. The result was that the petitioner was called upon to pay an additional tax of Rs. 3,219-81 nP. Against this order an appeal was taken to the Commercial Tax Officer. That failing a Revision Petition was filed before the Deputy Commissioner of Taxes. That also failed. A final Revision before the Commissioner of Commercial Taxes was also unsuccessful. It is in these circumstances that the petitioner has approached this Court with a petition under Article 226 of the Constitution seeking to have the order of the assessment quashed on the ground that these assessments have been made entirely without jurisdiction.

2. On behalf of the respondents the statement of facts is not denied. It is stated that on the discovery of certain defects in the issue of tickets for the entertainment, the Deputy Commercial Tax Officer was justifiably inclined to hold that the returns for earlier periods should also be incorrect as on these occasions also similar defects should have existed. It is claimed that Section 7-A of the Madras Entertainments Tax Act confers jurisdiction upon the appropriate authority to make a best of judgment assessment as has been done in this case. The contention that there is no jurisdiction is accordingly resisted.

3. Under Section 4 of the abovesaid Act, which can be called the charging section, on each payment for admission to any entertainment, a tax shall be levied and paid to the State Government at certain rates specified in the section. Section 7, which provides for the manner of payment of tax, states that the entertainment tax shall be levied in respect of each person admitted on payment and shall be calculated and paid on the number of admissions. Section 7-A provides for the furnishing of returns and for assessing the proprietor on the basis of the returns. What a return is, is not specified in the main Act itself but a return has to be furnished to such authority, in such manner and within such periods as may be prescribed. Turning to the rules in this record, there are several methods of payment of tax envisaged by these rules and the one that we are concerned with is covered by Part III of the Rules, which deals with payment of the tax on the basis of returns. Rule 20 states that any proprietor who wishes to adopt that mode has to apply to the Entertainments Tax Officer in advance of the entertainments specifying the place, date etc., and also the rates of payment for admission to it. After the furnishing of certain other particular, the Entertainments Tax Officer can sanction the application on accepting the security to be furnished by the proprietor for the proper payment of entertainment tax. The security has to be in the form of a deposit in a Government Treasury of cash or of National Savings Certificate duly pledged in the name of the Entertainments Tax Officer. Virtually therefore the probable amount of tax is either realised in advance or deposited and kept with the department concerned. After the furnishing of the security a permit in Form IV is granted. Form IV specified that the proprietor shall maintain a complete and correct account in Form II containing certain particulars. Clause (4) of Form IV requires that a return giving the totals in respect of the particulars prescribed in Form II for all performances during the week from Monday to Sunday (both inclusive) shall be sent to the Entertainments Tax Officer so as to reach him on the Tuesday following and in accordance with this form a treasury receipt showing the payment of tax or a crossed cheque as the case may be shall be attached thereto. It is this rule and Form IV which give a clue to understanding 7-A of the Act. The short question now before me is whether the prescribed authority in Section 7-A is competent to make a best of judgment assessment in respect of the numerous returns which had been periodically filed as required by Rule 20 and Form IV in the circumstances of the case.

4. A return is under the Act and the Rules given a particular significance. In. the case of a person who comes within the scope of Form IV it is a weekly return. In so far as Section 7-A lays it down it refers to a return which is contemplated in Form IV and if that is so return in respect of which the prescribed authority acquired jurisdiction to make a best of judgment assessment is a return which is for one week. Learned Additional Government Pleader, on the other hand, argues that though these returns are submitted by the proprietor along with the tax payable on the basis of the returns, they are not assessed at all immediately. Apparently these weekly returns are all accumulated and at some point of time which the assessing; authority decides upon, they are consolidated and a single assessment is made. If that is the way in which these returns are dealt with, I must say that is not in conformity with the requirements of Section 7-A of the Act. As far as Section 7-A and the Rules go to show, each return is independent of the rest and has to be assessed separately from the rest. This however is not a matter which, directly arises for consideration in the present case. The method of assessment is not in question at all. What is attacked is the action of the Deputy Commercial Tax Officer in making the best of judgment assessment in respect of numerous returns relating to past periods on the basis of some defects that were found on one particular day. Mr. Ramanujam, learned Counsel for the petitioner, argues that on the return being filed along with the accompanying statement and the tax unless the assessing authority deals with the return in any other way, it has to be presumed that there had been a valid assessment upon that return and that the matter has. to end there. It is claimed that the discovery of some defect in the running of the entertainment at a subsequent period cannot confer any jurisdiction upon the assessing authority to reopen the return of a past period and give him the right to make a best of judgment assessment.

5. The matter has to be considered only upon the language employed in Section 7-A. The only ground upon which the assessing authority in this case purported to make the best of judgment assessment was that on 26th March, 1960 he found certain defects in the running of the show. In the affidavit of the petitioner it has been stated that there were numerous periodical inspections on several prior occasions and that no fault had been discovered at such times. This averment has not been contradicted in the counter affidavit filed on behalf the respondent. If within the meaning ascribed to it by Section 7-A, the return for each week is a separate independent unit which has to be separately assessed, in the light of the facts alleged and not controverted, one can only imagine that during those earlier periods, no defect of any description justifying the conclusion that the returns relating there to was incorrect or incomplete could possibly have been reached. Unless there is material in relation to a particular return that that return is incorrect or incomplete, it is not open to the assessing authority in the light of the power conferred upon him by Section 7-A (3) to deal with any and every return. In that view, it follows that the order impugned was made without any jurisdiction and has to be quashed.

6. In addition, it may be pointed out that defects of the nature upon which the assessing authority purports to have relied upon are also dealt with in other parts of the Rules which make them punishable by prosecution. That is also a pointer indicating the narrow limits within which the best of judgment assessment can be made in cases like the present.

7. The result is the petition succeeds and the rule is made absolute. There will however be no order as to costs.


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