Research › Search › Judgment

Allahabad High Court · body

2013 DIGILAW 1809 (ALL)

Rajiv Sharma v. State of U. P.

2013-07-09

ARUN TANDON

body2013
JUDGMENT Arun Tandon, J. Petitioner before this Court is a T.V. Cable Operator in the name and style of M/s. Sun Satellite Cable T.V. Network, Aligarh. The disputed period in the present writ petition is between 2003 to 2009. For the purposes of deciding the present writ petition, the period may be divided into three groups. Group (a) would comprise of the period between 2003-2004, 2004-05 and 2005-06. Group (b) would comprise of the period between 2006-07 i.e. 01.04.2006 to 31.03.2007 and Group (c) would comprise of the period between 2007 to 2009. 2. So far as the first period Group (a) is concerned, suffice is to record that the District Magistrate under his order dated 12.01.2004 determined the number of subscribers attached with the petitioner's T.V. Cable Network and determined the tax liability. Petitioner preferred an Appeal. The appeal was allowed vide order dated 26.03.2004 and the matter was remanded to the District Magistrate for passing fresh orders after getting fresh survey conducted. It appears that the matter with regard to the survey fresh remained pending. In between financial year 2004-05 and 2005-06 intervene. 3 The District Magistrate on 04.01.2007 passed an order determining the number of subscribers attached to the petitioner's cable network between February, 2003 to July, 2006 as 262 and accordingly determined his tax liability. In the said order it has been specifically recorded that in terms of the order of remand survey was got done by the Inspector of the Entertainment Tax Department. It was also recorded that under the Government Order dated 06.10.2006 a Samadhan Yojna had been enforced by the State Government for the period 01.04.2006 to 31.03.2007. However, the benefit of the said Samadhan Yojna cannot be provided to the petitioner inasmuch as he has not furnished the correct number of subscribers attached to his cable network. 4. Not being satisfied with the order so passed, the petitioner filed an appeal before the State Government. The appeal was allowed vide order dated 18.09.2008 and two directions were issued. (i) The District Magistrate may pass a fresh order in light of the decision of the State Government and (ii) he may also consider his application under the Samadhan Yojna. Not being satisfied with the order so passed, the petitioner filed an appeal before the State Government. The appeal was allowed vide order dated 18.09.2008 and two directions were issued. (i) The District Magistrate may pass a fresh order in light of the decision of the State Government and (ii) he may also consider his application under the Samadhan Yojna. 5 The District Magistrate vide his order dated 29.01.2009 has reconsidered the matter in light of the records which were available after due opportunity of hearing to the petitioner and after calling for his explanation. The District Magistrate has recorded that the survey of number of subscribers attached to the cable network of the petitioner had been done after publication in the newspaper as well as on T.V. Channel. There was no requirement of any separate notice being issued to the petitioner. The number of subscribers attached to the petitioner cable network based on the aforesaid survey as reflected from the survey reports was communicated to the petitioner he was granted repeated opportunity to object to the number of subscribers so found. The District Magistrate also considered the impact of the order of the State Government in Appeal No. 16-A wherein it was held that if an advertisement has been published in newspaper as well as on t.v. channel then there is no requirement of any separate notice being issued to the petitioner before survey. The District Magistrate, on the basis of the records available and the reports obtained, after due notice and opportunity of hearing to the petitioner vide his order dated 28.01.2009 has determined that between February to July, there were 262 subscribers attached to the petitioner cable network. For the period between October 2006 to 2009 there were 291 subscribers attached to the petitioner cable network and accordingly the tax liability has been determined. 6. Not being satisfied, the petitioner filed an appeal before the State Government. The appeal has also been dismissed under the order dated 05.02.2010 after recording that the findings recorded by the District Magistrate are based on appreciation of material evidence on record and the survey reports. The petitioner for the reasons best known to him had absented himself at the time of hearing before the State Government and, therefore, the State Government had no option but to dismiss the appeal. 7. The petitioner for the reasons best known to him had absented himself at the time of hearing before the State Government and, therefore, the State Government had no option but to dismiss the appeal. 7. Counsel for the petitioner made an attempt to challenge the order passed on appeal before the State Government on the plea that there has been non compliance of the order of the State Government dated 18.09.2008 insofar as it required the District Magistrate to pass a fresh order in respect of the first period in light of the government order dated 26.03.2004 as well as for consideration of his application under the Samadhan Yojna. 8. The State Government under the order impugned has recorded that the details of the subscribers attached to the petitioner was made available to him. For the reasons best known to the petitioner, he did not dispute the detail so provided nor he has challenged the same in the memo of appeal. His only ground was that the survey has not been done in his presence. The State Government has, therefore, come to a conclusion that the petitioner is only trying to avoid his tax liability. 9. I have heard learned counsel for the parties and have gone through the records of the present writ petition. 10. It is not disputed that the survey in the year 2003 after due publication in the newspapers and T.V. channels had been done. In my opinion there is no requirement of any further notice being issued to individual subscriber. Even otherwise once the list of subscribers attached to the petitioner cable network had been furnished to him after fresh survey, he had ample opportunity to dispute the same. But instead of taking recourse to the said procedure the petitioner has only been harping on the ground that the survey had not been done in his presence. In the present petition also he has not disputed the list of subscribers attached to his cable network as per the order of the District Magistrate and that of the State Government. In the facts and circumstances of the case, this Court is of the opinion that the findings recorded in the orders impugned are based on true and correct appreciation of evidence. No interference is warranted against the order impugned. 11. Writ petition lacks merit and is accordingly dismissed. Interim order, if any, stands discharged.