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1977 DIGILAW 506 (MAD)

A. P. Vasudevan v. State of Madras, represented by the Commissioner for Land Revenue, Food Production and Commercial Taxes, Board of Revenue, Madras.

1977-11-18

G.RAMANUJAM

body1977
ORDER.-The petitioner was running a touring talkie under the name and style of Karthikeyan Touring Talkies’ at Sankari. On 27th December, 1968, the Deputy Commercial Tax Officer (Entertainments Tax Squad) arranged for the test purchase of one male floor ticket and one male bench ticket for the second show on 27th December, 1968 in the theatre through two persons, one. M.S. Vasudevan and one K.V. Palanimalai, last grade Government servants and inspected on 28th December, 1968 at 8-45 p.m. when the first show was in progress. During the inspection it was found that two tickets bearing Nos. 28743 and 13426 which were issued on the previous day were found to be re-issued and were in possession of two spectators. Immediately statements were taken from the spectators who were in possession of the two tickets and also from the petitioner. In view of the fact that the tickets bearing same numbers were re-issued on a subsequent date,the inspecting officers felt that the petitioner has been in the habit of issuing duplicate tickets and suppressing the same with a view to evade payment of entertainment tax. Therefore, the matter was referred to the Entertainment Tax Officer, Tiruchengode, who issued a notice, dated 1st February, 1969 to the petitioner calling upon him to appear for an enquiry regarding the inspection of the theatre on 28th December, 1968. After enquiry the Entertainment Tax Officer issued a notice to the petitioner to show cause why his returns for the weeks ending from 3rd November, 1968 to 29th December, 1968 should not be rejected and assessments made on best judgment basis for those weeks and why penalty should not also be levied. After considering the objections filed by the petitioner, the Entertainment tax Officer passed 18 independent orders on 7th July, 1969 for the said nine weeks both under the Entertainment Tax Act and under the Tamil Nadu Local Authorities Finance Act, by including the tax escaped under the parallel set of tickets sold by the proprietor. He also levied penalty for all the weeks. The petitioner filed 18 appeals against the 18 orders of the Entertainment Tax Officer, dated 7th July, 1969 which were however dismissed on 12th November, 1969. The petitioner thereafter preferred 18 revision petitions to the Deputy Commissioner, Coimbatore, which also failed. Subsequently, the petitioner preferred 18 revision petitions to the Commissioner (Entertainment tax), the respondent herein. The petitioner filed 18 appeals against the 18 orders of the Entertainment Tax Officer, dated 7th July, 1969 which were however dismissed on 12th November, 1969. The petitioner thereafter preferred 18 revision petitions to the Deputy Commissioner, Coimbatore, which also failed. Subsequently, the petitioner preferred 18 revision petitions to the Commissioner (Entertainment tax), the respondent herein. The Commissioner dismissed all the revision petitions by a common order, dated 14th November, 1972. In this writ petition the petitioner has questioned the validity of the said common order relating to nine independent orders under the Tamil Nadu Entertainment tax Act, and another nine independent orders under the Tamil Nadu Local Authorities Finance Act. 2. In this writ petition the petitioner has contended that the fact that two duplicate tickets were found on a particular day will not lead to the assumption that he has been in the habit of issuing duplicate tickets and evading tax for about nine weeks especially when there is no material to indicate that in all the earlier weeks he had issued duplicate tickets. The petitioner’s case is that if, at all, there can be a revision of assessment only for the week during which the inspection took place and not for the earlier weeks. From the counter affidavit it is seen that the assessing authority proceeded on the basis that having regard to the numbers which are found to be duplicate tickets detected at the time of inspection it can fairly be assumed that the entire series from 1 up to the number found in the duplicate ticket should have been utilised by the petitioner during the earlier weeks. There fore, it is only from an assumption or inference that there has been an escapement of tax in the earlier weeks also, the revision of assessments for the earlier weeks has been made, having regard to the fact that if a theatre owner wants to use duplicate tickets from a particular day or a week he can do so only by using the numbers which are found in the original tickets. Merely because duplicate tickets contained certain numbers one cannot go backwards from that number up to 1 and say that the petitioner has actually evaded tax in the earlier weeks by the use of duplicate tickets. Merely because duplicate tickets contained certain numbers one cannot go backwards from that number up to 1 and say that the petitioner has actually evaded tax in the earlier weeks by the use of duplicate tickets. It is not therefore, possible to agree with the assumption made by the authorities that the petitioner had actually used duplicate tickets in the earlier weeks. Though on this ground the petitioner is entitled to succeed in relation to the revision of assessment for the earlier weeks, he cannot be granted the relief except for the first week ending 3rd November, 1968, as I am upholding the preliminary objection taken by the State as to the maintainability of a single writ petition challenging the validity of as many as 18 independent orders of assessment. 3. It is not in dispute that there were 18 proceedings before the assessing authority, the appellate authority and the two re-visional authorities. In fact, the original appellate and the first revisional authority had passed independent orders and it is only the Entertainment Tax Commissioner who has passed a common order, in all the 18 revision petitions. The question is whether in the circumstances of this case the petitioner can maintain a single writ petition. 4. According to the learned counsel for the Revenue though a common order has been passed by the Entertainments Tax Commissioner in 18 revision petitions,that will not enable the petitioner to question the validity of the said common order by filing a single writ petition. The case of the petitioner is that though originally there were as many as 18 proceedings, since the order sought to be quashed is only one order passed by the Entertainment Tax Commissioner, it is not necessary for the petitioner to file as many writ petioners as there were original proceedings. 5. In Mahabir Prasad v. B.S. Gupta1, a Division Bench took the view that a composite petition under Article 226 is maintainable where grounds of attack, for all the years of assessment to tax are the same and common questions arise for consideration and the orders of assessment in question are practically simultaneous. In C. Motor Services v. Appellate Authority2, it has been held that when orders passed in various appeals by the appellate authority constituted under the Central Provinces and Berar Motor Vehicles Act, 1939 are inter-connected,the pretitioner is entitled to challenge them by filing one writ petition. In C. Motor Services v. Appellate Authority2, it has been held that when orders passed in various appeals by the appellate authority constituted under the Central Provinces and Berar Motor Vehicles Act, 1939 are inter-connected,the pretitioner is entitled to challenge them by filing one writ petition. But, a Division Bench of this Court in Management of R.B.D. Factory v. Industrial Tribunal3has taken a different view. In that case, on a reference by the Government for adjudication of various issues relating to wages, dearness allowance, bonus and holidays with pay arising between 30 industrial establishments and the persons working in those establishments, the Industrial Tribunal passed a common award in relation to all the establishments. The question arose whether a single writ petition could be filed by all the aggrieved industrial establishments against the said award. The Court held, after a detailed consideration of the earlier decisions on the point, that the interests of 30 concerns, although similar, were several and distinct, and therefore, each one of them must file separate writ petitions and a joint petition by all of them was incompetent. In K.B. Manufacturing Co. v. Sales Tax Commissioner,4 a Division Bench expressed the view that a writ petition to quash two assessment orders pertaining to two assessment years or one petition for the quashing of two assessment orders under two different taxation statutes, even though the assessee and the assessing authority are the same, cannot be entertained. In Chandrabhan Gosain v. State of Orissa5, the question arose as to whether a single appeal can be filed in respect of an order passed in a writ petition relating to nine assessment orders. In that case one writ petition was filed challenging the validity of nine assessment orders and against the order in the writ petition, a single appeal was filed before the Supreme Court. In these circumstances the Supreme Court held that as the matter originated out of one writ petition there was only one proceeding and not as many proceedings as there were assessment orders, that when an appeal is taken from the judgment of the High Court in such a single petition, it is impossible to contend that there are more appeals than one, and that therefore,there can be a single appeal against the order of the High Court passed in one writ petition. The Supreme Court, however, referred to its two earlier decisions in Lajwanti Sial’s case6and Kishanchand Chellaram’s case7and distinguished the same. 6. In Lajwanti Sials case6there were a number of applications under section 66 (2) of the Indian Income-tax Act, for reference of the same question. These separate references were dealt with by one judgment of the High Court against which one appeal was taken to the Supreme Court. When the maintainability of such an appeal was questioned, the Supreme Court held that though a single appeal has been filed against the High Court’s judgment it was really five appeals, and that a common judgment should be taken to have been delivered in each of the different reference cases. In Kishinchand Chellaram’s case1, there were four applications by four different assessees for reference of three identical questions arising in each assessment case under section 66 (1) of the Income-tax Act. There was one order of reference to the High Court and the High Court treated the case as a single case of reference. When the order of the High Court was taken in appeal to the Supreme Court by a single appeal it was held that though there was one reference and a single order in that reference by the High Court it should be taken that there were in fact a number of references and number of orders. 7. I am of the view that the principle of the decision in Chandra Bhan Gupta v. State of Orissa2cannot apply to the facts of this case. As a matter of fact, the decision in that case seems to suggest that the proper test is to find out whether the matter agitated in the writ petition arises out of a single proceeding or different and independent proceedings. Admittedly in this case there were 18 independent assessment orders and 18 independent revision petitions before the ultimate revisional authority. Therefore, the common order passed by the respondent should be taken to have arisen out of 18 revision petitions as per the principle laid down by the Supreme Court in Lajwanti Sial’s case3and Kishanchand Chellaram’s case1. Therefore, I have to hold that though the order passed by the Entertainment Tax Commissioner in this case is one it should be taken to be 18 orders passed in 18 proceedings, and that therefore, the petitioner cannot maintain a single writ petition. Therefore, I have to hold that though the order passed by the Entertainment Tax Commissioner in this case is one it should be taken to be 18 orders passed in 18 proceedings, and that therefore, the petitioner cannot maintain a single writ petition. In this view, I hold that the petitioner cannot maintain a single writ petition. However, I shall treat this as a petition filed against the assessment order under the Entertainments Tax Act for the week ending with 3rd November, 1968. In that view, the re-assessment made on the petitioner for the week ending with 3rd November, 1968 will stand quashed, In other respects the order will stand. 8. The writ petition is allowed to the extent indicated above. There will be no order as to costs.