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2009 DIGILAW 43 (KAR)

J. C. Alveris v. State of Karnataka

2009-01-16

N.K.PATIL

body2009
ORDER N.K. Patil, J.— The petitioner in this petition has sought for quashing the impugned communication dated January 30, 2008 issued by the second respondent vide annexure C in so far as the petitioner herein is concerned and consequently quash the impugned final assessment order dated February 29, 2008 passed by the fourth respondent vide annexure E and the demand notice at annexure F dated July 11, 2008. Further, the petitioner has sought for a declaration, to declare that the petitioner is not liable to pay entertainment tax to the respondents in respect of "Krishna", a Kannada film screened by the petitioner between the date of the same being certified by the third respondent for 100 per cent tax exemption (i.e., from October 5, 2007 as per annexure A) to the date of communication of the order of cancellation/withdrawal/suspension of the certificate of 100 per cent tax exemption ; and consequently issue a writ of prohibition or any other writ, order or direction prohibiting the respondents from demanding and collecting entertainment tax from the petitioner for screening Kannada film "Krishna" during the abovementioned period. 2. It is not in dispute that the third respondent had issued the certificate as early as on October 5, 2007 giving 100 per cent exemption from entertainment tax in respect of the film "Krishna". Be that as it may, acting on the complaint submitted by the third party, the third respondent has suspended the 100 per cent exemption of entertainment tax accorded by him on October 5, 2007 and communicated the same to the second respondent on December 20, 2007. Based on the said communication, the second respondent has passed the impugned order/communication dated January 30, 2008, vide annexure C, directing to collect the entertainment tax in respect of the film "Krishna" from all theatres wherever it has been screened as well as is being screened, as if the tax exemption certificate has already been withdrawn or cancelled and to submit a report regarding the same within fifteen days. Be that as it may, the third respondent has requested the second respondent by his communication dated February 23, 2008 not to collect the taxes for the time being till the case filed against the producer is decided. Be that as it may, the third respondent has requested the second respondent by his communication dated February 23, 2008 not to collect the taxes for the time being till the case filed against the producer is decided. Instead of awaiting the decision from the higher authority, the fourth respondent has unilaterally, without affording opportunity to the petitioner, passed the impugned assessment order dated February 29, 2008 vide annexure E and the consequential demand notice dated July 11, 2008 vide annexure F. Being aggrieved by the impugned communication/assessment order/demand notice vide annexures C, E and F, respectively, the petitioner herein felt necessitated to present the instant writ petition. 3. I have heard learned Counsel appearing for the petitioner and learned Government Pleader appearing for the respondents. 4. After careful perusal of the material available on record, it emerges that, the impugned order passed by the second respondent dated January 30, 2008 is purely on the basis of the communication dated December 20, 2007 sent by the information Department, suspending 100 per cent exemption from the entertainment tax to the movie "Krishna" and directed the subordinate officers to collect the tax. Meanwhile, the third respondent has requested the second respondent not to collect the taxes for the time being till the criminal case filed against the producer is decided. The same has been communicated to the second respondent and his subordinate officers, viz., respondents 3 and 4. The fourth respondent instead of awaiting the decision to be taken by the competent authority, without taking prior permission from respondents 1 and 2, has proceeded and passed the impugned assessment orders and the consequential demand notice without affording opportunity to the petitioner. Therefore, the said order passed and the demand notice issued are liable to vitiate for non-compliance with the principles of natural justice. 5. Therefore, without going further into the merits and demerits of this case, it would suffice for this Court, if the communication, assessment order and the demand notice are set aside and the matter is remanded to respondents 2 and 4 to take appropriate decision in accordance with law. 6. 5. Therefore, without going further into the merits and demerits of this case, it would suffice for this Court, if the communication, assessment order and the demand notice are set aside and the matter is remanded to respondents 2 and 4 to take appropriate decision in accordance with law. 6. Having regard to the facts and circumstances of the case, as stated above, the writ petition filed by the petitioner stands disposed of as follows: (i) The impugned communication dated January 30, 2008 bearing No. ENT/CR-24/2007-08 issued by the second respondent vide annexure C, the impugned final assessment order dated February 29, 2008 passed by the fourth respondent vide annexure E and the consequential demand notice dated July 11, 2008 vide annexure F also issued by the fourth respondent are hereby set aside. (ii) Matter stands remitted back to respondents Nos. 2 and 4 to reconsider the matter and take appropriate decision after receiving the communication orders from the competent authority of the first respondent and to proceed further in accordance with law.