CHATTERJI, J. ( 1 ) BY order dated 18th November 1986 passed by this Court (Coram : P. R. Gokulakrishnan, C. J. and G. T. Nanavati, J.) Rule was issued in both the aforesaid matters on 18-11-1986. However, no stay as regards the orders impugned in the aforesaid petitions was granted and the petitioners were given two months time to pay up the amount decided by the authorities as per Annexures a, B and C to the respective petition. ( 2 ) HAVING heard Mr. S. R. Shah, learned Advocate for the petitioners and Mr. K. T. Dave, Asstt. Government Pleader for the respondents in depth and detail and upon persual of the material on record, we fail to appreciate as to how the petitioners should be insisted upon for making the payment of the entertainment tax for the period/periods, they were prohibited from running the show. The word entertainment has been defined in Sec. 2 (e) of the Gujarat Entertainments Tax act, 1977 (hereinafter referred to as the Act) and provides that entertainment includes any exhibition, performance, amusement, game or sport to which persons are admitted for payment. It has been specifically stated in the petition that due to monsoon, the petitioners under the orders of the Mamlatdar could not run the shows and were required to close down their cinema during different periods as detailed in the petition. The petitioners, therefore, asked for remission for payment of entertainment tax for the respective periods when admittedly the petitioners were not allowed to run the cinema shows. The Mamlatdar himself has been made a party. Both, the appellate authority and the revisional authority have not appreciated the matter in a proper perspective and by referring to the provisions of Sec. 6 (6) of the Act, held inter alia, that a proprietor of a cinema who opted for payment of tax under sub-section (2) may at any time but not before the expiry of a period of twelve months by a notice in such form as may be prescribed, addressed to the prescribed officer, revoke his option from the commencement of any month following that in which the notice is given. Such a provision, according to us is obviously redundant in the facts and circumstances of the present case. Such a provision, according to us is obviously redundant in the facts and circumstances of the present case. In view of the material on record we are convinced that the authorities concerned have erroneously insisted for the payment of the entertainment tax for the periods when admittedly there were no entertainment shows at the instance of the authority concerned. Considering the submissions made by the learned Advocates for the parties and the material on record, we find that the impugned orders suffer from inherent infirmity and are illegal and cannot be sustained in law. The impugned orders in both the aforesaid petitions are liable to be quashed and set aside and are accordingly quashed and set aside. The respondent authority at the first stage will however, be entitled to reconsider the matter once again after giving the respective petitioner full opportunity of hearing in the light of the aforesaid observations. The respondents will, not however, levy any entertainment tax for the period for which the petitioners were not allowed to run the cinema shows. It is clarified that at the time of passing the fresh order the concerned officer will take into consideration the instructions/orders issued by the Government in this behalf from time to time. DIVECHA, J. (Concurring): I had an occasion to listen to the judgment of my learned Brother in this matter speaking for the Division Bench. I fully agree with the ultimate conclusion reached by us and he reasoning given by my learned brother in supprot thereof. I, however, think it necessary to add a few words of my own. 2. The question arising in both these petitions is identical. It is to the effect whether or not a cinema owner should be saddled with the liability of entertainment tax when he is prevented or prohibited from providing entertainment by means of his cinema. Since this basic question is common in both these petitions, we have thought it fit to dispose of both these petitions by these common judgments of ours. ( 3 ) THE factual backdrop giving rise to these two petitions may be briefly summarised. In Special Civil Application No. 3125 of 1986 (the First Petition for convenience), the petitioner is a touring talkies or a so-called cinema theatre. It obtained a touring talkies licence under the Bombay Cinema Regulations Act, 1954 (the Bombay Act for brief ). ( 3 ) THE factual backdrop giving rise to these two petitions may be briefly summarised. In Special Civil Application No. 3125 of 1986 (the First Petition for convenience), the petitioner is a touring talkies or a so-called cinema theatre. It obtained a touring talkies licence under the Bombay Cinema Regulations Act, 1954 (the Bombay Act for brief ). It also incurred liability to pay entertainment tax under the Gujarat Entertainments Tax Act, 1977 (the Gujarat Act for brief ). Under Sec. 6 (2) thereof, an application was made for payment of lumpsum tax fixed according to law. It appears that the lumpsum amount of tax fixed for the petitioner was at the rate of Rs. 516. 53 paise per week. It appears that respondent No. 2 required the petitioner to keep its touring talkies closed from 9th July 1982 to 30th October 1982 in the year 1982 and from 17th June 1983 to 14th November 1983 in the year 1983 and from 6th July 1984 to 16th October 1984 in the year 1984. It appears that initially no entertainment tax was levied for the closed period. However, by an order passed by respondent No. 2 on 12th September 1984, the petitioner was saddled with the liability of entertainment tax to the tune of Rs. 27,154. 72 paise for the aforesaid periods during which the petitioners touring talkies was required to be kept closed. A copy of the aforesaid order is at Annexure-A to the First Petition. The aggrieved petitioner carried the matter in appeal before respondent No. 3. By the order passed by respondent No. 3 on 13th February 1986, the appeal came to be dismissed. Its copy is at Annexure-B to the First Petition. The petitioners attempt to seek revision of the aforesaid orders at Annexures-A and B to the First Petition by respondent No. 4 proved to be an exercise in futility. His revisional application came to be rejected by the order passed by respondent No. 4 on 31st May 1986. Its copy is at Annexure-C to the First Petition. The aggrieved petitioner has thereupon moved this Court by means of this petition under Arts. His revisional application came to be rejected by the order passed by respondent No. 4 on 31st May 1986. Its copy is at Annexure-C to the First Petition. The aggrieved petitioner has thereupon moved this Court by means of this petition under Arts. 226 and 227 of the constitution of India for questioning the correctness of the impugned order at annexure-A to the First Petition as affirmed in appeal by the appellate order at annexure-B thereto and in revision by the revisional order at Annexure-C thereto. ( 4 ) SO far as Special Civil Application No. 3126 of 1986 (the Second Petition for convenience) is concerned, the facts are more or less similar. The petitioner in this petition is also a touring talkies. It was required to be kept closed from 9th july 1982 to 30th September 1982 in the year 1982 and from 24th June 1983 to 15th October 1983 in the year 1983. It appears that initially no entertainment tax liability was fastended to the petitioner for the aforesaid periods during which the touring talkies involved in the Second Petition remainded closed. However, by his order passed on 19th September 1985, respondent No. 2 saddled the petitioner in the Second Petition with the liability to pay the entertainment tax to the tune of rs. 17,779. 59 paise for the aforesaid periods during which the touring talkies was required to be kept closed at the instance of the concerned authorities. A copy of the aforesaid order is at Annexure-A to the Second Petition. The aggrieved petitioner unsuccessfully carried the matter in appeal and in revision. By his order passed on 13th February 1986, the petitioners appeal against the impugned order at Annexure- a to the Second Petition came to be dismissed by respondent No. 3. A copy of the appellant order is at Annexure-B to the Second Petition. The revisional order rejecting the petitioners revisional application was passed by respondent No. 4 on 31st May 1986. Its copy is at Annexure-C to the Second Petition. The aggrieved petitioner has thereupon approached this Court by means of the Second Petition for questioning the correctness of the impugned order at Annexure-A thereto as affirmed in appeal by the appellate order at Annexure-B thereto and in revision by the revisional order at Annexure-C thereto. Its copy is at Annexure-C to the Second Petition. The aggrieved petitioner has thereupon approached this Court by means of the Second Petition for questioning the correctness of the impugned order at Annexure-A thereto as affirmed in appeal by the appellate order at Annexure-B thereto and in revision by the revisional order at Annexure-C thereto. ( 5 ) IT is the case of the petitioner in each case that the petitioner was required to keep his touring talkies closed for the aforesaid periods at the instance of respondent No. 2 in each case. This factual averment, as rightly observed by my learned Brother in his judgment, has not come to be controverted by or on behalf of respondent No. 2 in any manner. No reply-affidavit has come to be filed by or on behalf of respondent No. 2 in this case. No respondent has chosen to controvert that factual statement in any manner before us. It is strange that respondent no. 3 herein as the appellate authority has chosen not to peruse the record of the case for verifying the correctness of the statement made by the petitioner in each case to the effect that the touring talkies was required to be kept closed at the instance of respondent No. 2 herein for the aforesaid periods despite the fact that respondent No. 2 herein was very much the respondent in the appellate proceedings before respondent No. 3 herein. It was not necessary for respondent No. 3 to insist on a certified copy of the order or orders passed by respondent No. 2 in each case requiring the petitioner in each case to keep the touring talkies involved in each case closed for the aforesaid periods. The approach and attitude adopted by and on behalf of respondent No. 3 herein does not befit him as an appellate authority. As an appellate authority, respondent No. 3 herein ought to have kept in mind the well settled principle of law that an appeal is a continuation of the original proceeding. While taking up an appeal for hearing, it would, therefore, be necessary to peruse the record of the original proceeding wherever and whenever necessary. No party should ordinarily be subjected to production of a certified copy of an order or orders when the author thereof is very much a party to the proceeding in question. While taking up an appeal for hearing, it would, therefore, be necessary to peruse the record of the original proceeding wherever and whenever necessary. No party should ordinarily be subjected to production of a certified copy of an order or orders when the author thereof is very much a party to the proceeding in question. In that view of the matter, the aforesaid approach and attitude on the part of respondent No. 3 herein as the appellate authority was not justified. The long and short of it is that the averment made by the petitioner in each case to the effect that respondent No. 2 directed each petitioner to keep the touring talkies closed for the aforesaid periods involved in each case has not come to be controverted before us. In absence of any controversy in that regard, I think we should accept the averments made by the petitioner in each case on oath to the effect that each petitioner was required to keep the touring talkies closed for the periods mentioned hereinabove in each case. ( 6 ) IT would be quite proper to look at the opening part of Sec. 3 (1-A) of the gujarat Act. It is a charging section. The relevant words are : "there shall be levied and paid to the State Government in respect of an entertainment by cinema a tax at the following rates. . . ". It is not necessary to reproduce the entire provision in exstenso. The aforesaid provision is clear enough to show that entertainment tax has to be levied and paid in respect of "an entertainment by cinema. " It needs no telling that an entertainment by cinema can be had if cinema runs. It cannot be disputed that a touring talkies is meant for exhibiting films popularly known as cinema in the common parlance. It thus becomes clear that entertainment tax can be levied and paid if a cinema house or a touring talkies is able to provide entertainment. If it is prevented or prohibited from providing entertainment at the instance of an authority like respondent No. 2 herein, no entertainment tax can be levied. In such a case, the owner of such cinema house or touring talkies is not required to pay any entertainment tax for the period during which he was prevented or prohibited from providing entertainment. If it is prevented or prohibited from providing entertainment at the instance of an authority like respondent No. 2 herein, no entertainment tax can be levied. In such a case, the owner of such cinema house or touring talkies is not required to pay any entertainment tax for the period during which he was prevented or prohibited from providing entertainment. We should, however, clarify that the cinema owner cannot escape his liability to pay entertainment tax if he chooses to keep his cinema house close without taking recourse to the provisions contained in Sec. 6 (6) of the Gujarat act. The entertainment tax liability need not be fastended to a cinema owner if he is to keep his cinema house closed out of compulsion and not out of choice. ( 7 ) SHRI Shah for the petitioner in each case has voiced a grievance to the effect that the impugned order at Annexure-A to each petition was passed without giving any opportunity of hearing to the petitioner in each case as provided in Sec. 9 of the Gujarat Act. Shri Shah for the petitioner in each case has also brought to our notice one Circular issued by and on behalf of respondent No. 4 on 21st April, 1992 clarifying the position that a cinema house liable to pay the lumpsum tax under Sec. 6 (2) of the Gujarat Act is unable to run its shows for the whole of week from Friday to Thursday next has not to pay the tax for the whole of that week provided all shows in the concerned week could not be shown. Shri Shah for the petitioner in each case informs us that in a revisional proceeding respondent No. 4 himself has given retrospective effect to the aforesaid Circular issued by him on 21st April 1992 by his order passed on 14th July 1992. In view of this development in the matter at the instance of respondent No. 4, it would be desirable to remand the matter to respondent No. 2 for his fresh decision according to law with respect to the liability of the petitioner in each case for payment of entertainment tax for the aforesaid periods during which the touring talkies remained closed at the instance of respondent No. 2 herein. It has, therefore, become necessary to set aside the impugned order at Annexure-A to each petition as affirmed in appeal by the appellate order at Annexure-B thereto and in revision by the revisional order at Annexure-C thereto. ( 8 ) SINCE my learned Brother has in his judgment dealt with the submission made by the learned Assistant Government Pleader for the respondents based on sec. 6 (6) of the Gujarat Act, I have thought it fit not to dilate upon it in this separate concurring judgment of mine. ( 9 ) IN the result, both these petitions are accepted. The impugned order at annexure-A to each petition as affirmed in appeal by the appellate order at annexure-B thereto as further affrirmed in revision by the revisional order at annexure-C thereto is quashed and set aside. The matter is remanded to respondent no. 2 for restoration of the proceedings in question to file and for his fresh decision according to law after giving an opprotunity of hearing to the petitioner in each case in the light of this judgment of ours. Rule is accordingly made absolute to the aforesaid extent in each petition with no order as to costs. .