B. A. MEHTA, J. ( 1 ). The petitioners cinema house had exhibited Hindi film "abdulla" in september 1981. The said film was granted exemption under Section 29 of the Gujarat Entertainment Tax Act, 1977 by a notification dated December 3, 1980. One of the conditions of the exemption notification was that rates of admission prevailing as on November 1, 1980 excluding the amount of tax shall not be increased and that the rates of admission shall be reduced by the amount of the exemption given. Condition No. 5 provided that in case of breach of any of the conditions of the exemption, it shall be lawful for the prescribed officer to take action under Section 30 of the gujarat Entertainment Tax Act, 1977. The exhibition of the movie started in the petitioners theatre on September 4, 1981 and in the three shows of 4lh, 5th and 6th September 1981, and first two shows of 7th September 1981, the prevalent rates of tickets were charged, namely Re. 1. 90 for balcony, Re. 1. 60 for upper stall and Re. 1. 00 for lower stall whereas the prevailing rales on November 1, 1980 in the cinema house of the pelilioner were Re. 1. 85 for balcony, Re. 1. 40 for upper stall and Re. 1. 00 for lower stall. As soon as the pelilioner learnt about this condition, the rales prevalent on november 1, 1980 were implemented from the third show of September 7,1981. ( 2 ) ON accounl of such breach of condition of exemption, the authorities have passed an order under Section 30 charging entertainment lax for all these shows as if the theatre was fully occupied to its capacily. ( 3 ) THE learned Counsel for the petitioner slales that the pelilioner is prepared to pay the amount of tax on the lickets actually issued and the seals aclually occupied on the basis of the aclual payment for admission as if there was no exemption. That calculation has been made in para 12 of the pelilion and lhal amount comes to Rs. 5,487. 29 as againsl the assessment of Rs. 16,096/. That calculation has been made in para 12 of the pelilion and lhal amount comes to Rs. 5,487. 29 as againsl the assessment of Rs. 16,096/. ( 4 ) SECTION 30 (1) reads as follows:"30 (1): Where any entertainment is exempted under Section 29 from whole or any part of the tax payable under this act subject to any condition, then in the event of a breach of any such condition, the proprietor shall, notwithstanding such exemption, be liable to pay tax in relation to such entertainment. " ( 5 ) UNDER this provision, the proprietor is liable to pay tax in relation to such entertainment not with standing such exemption. Therefore, even if on breach of the condition, exemption is treated as not being available, the only consequence would be that the cinema proprietor would be liable to pay tax in relation to such entertainments. Section 3 provides that there shall be levied and paid to the State government on every payment for admission to an entertainment, a tax at the specified rate. The slabs are provided at a certain percentage of the payment for admission and the areas are divided into populations having more than one lac or less than one lac. In areas with population of more than one lac, out of the first 100 paise of payment for admission or any part thereof, 4056 of such payment; out of next 100 paise, 55% and out of the next payment, 65% tax is charged. Thus, if the payment for admission to balcony is Rs. 4. 30, the tax would be Rs. 2. 45, calculated as under: First 100 paise 0. 40 Second 100 paise 0. 55 Third 100 paise 0. 65 Fourth 100 paise 0. 65 Last 30 paise 0. 20 Total Rs. 4. 30 Total Rs. 2. 45 ( 6 ) THE authority has assessed the lax as if the payment for admission to balcony class was Rs. 4. 30 collected by the cinema owner. If that has been factually correct, the assessment might be right. But in the present case, the payment for admission to balcony class was Re. 1. 90. Therefore, calculating tax at 40% for the first 100 paise and 55% for the next 90 paise, the tax would be Re. 0. 95 paise per ticket of Re. 1. 90 for balcony and Re. 0. 75 per tickel of Re. 1. But in the present case, the payment for admission to balcony class was Re. 1. 90. Therefore, calculating tax at 40% for the first 100 paise and 55% for the next 90 paise, the tax would be Re. 0. 95 paise per ticket of Re. 1. 90 for balcony and Re. 0. 75 per tickel of Re. 1. 60 for upper stall. ( 7 ) HOWEVER, the aulhorities have taken the ticket charges for balcony and upper stall as if the cinema proprietor had charged the full normal ticket rate when there is no exemption. If the payment for admission of balcony is Rs. 4. 30, entertainment tax would be Rs. 2. 45 as calculated above. But when the payment for admission to balcony is only Re. 1. 90, the lax has to be assessed on the basis of Re. 1. 90 even for the balcony class because that is the aclual payment for admission to balcony class in the present case. The authorities have utterly gone wrong in proceeding on the basis lhal the paymenl for admission lo balcony was rs. 4. 30. ( 8 ) IN view of this clear error on the part of the aulhorilies, the impugned orders are required lo be modified and the petitioner is liable to pay tax only on the basis of the aclual paymenl for admission lo balcony class and the upper stall for which there is breach of condilion of exemplion. The aulhorilies are directed to make the reassessment on the aforesaid basis. The pelitioner has claculated this amount as Rs. 5,487. 29. The pelilioner has already deposiled a sum of Rs. 4,024. 00 on May 24, 1982 and, therefore, the pelilioner is direcled lo pay the difference between Rs. 5,487. 29 and Rs. 4,024. 00 within two months from today. If Ihere is any further amount lo be recovered, the authority shall give a notice to the pelilioner showing the calculalion on the basis of this judgment. The petilion is allowed and rule is made absolute accordingly with costs. Petition allowed. .