Allahabad High Court
Anandi Water Park Resorts And Club ... vs State Of U.P. Thru. Addl. Chief ... on 21 October, 2022
Bench: Pankaj Bhatia
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
Court No. - 18
Case :- WRIT - C No. - 13024 of 2019
Petitioner :- Anandi Water Park Resorts And Club Pvt. Ltd. Thru. Dir. Amit
Respondent :- State Of U.P. Thru. Addl. Chief Secy. Commercial And Entertain
Counsel for Petitioner :- Apoorva Tewari,Aditya Tewari
Counsel for Respondent :- C.S.C.
Hon'ble Pankaj Bhatia,J.
1. Heard Sri Aditya Tewari, learned Counsel for the petitioner and Sri Rajesh Kumar Shukla, learned Counsel appearing on behalf of the State.
2. The present petition has been filed challenging the order dated 26.03.2010 whereby the demand of entertainment tax has been raised an amount of Rs.7,91,783.50/- against the petitioner and further penalty of Rs.20,000/- has been imposed. The petitioner also challenges the order dated 21.01.2016 whereby the appeal preferred by the petitioner was dismissed ex-parte and also an order dated 30.03.2017 whereby the application filed for recall of the ex-parte order dated 21.01.2016 has been rejected.
3. The facts in brief are that the petitioner is a Company incorporated under The Companies Act, 1956 and is a Proprietor of a water park situate at Faizabad Road, Lucknow and runs a water park in the said premises in accordance with the permission obtained from the requisite authorities.
4. It is argued that on 16.05.2009, a random survey of the water park was conducted by the Entertainment Tax Inspector and it was recorded that 108 persons above the height of 120 cm and 28 persons below the height of 120 cm were availing the facilities in the water park at the time of survey and subsequently, in the survey conducted on 17.05.2009, 203 adults and 50 minors were found in attendance and similarly in the survey conducted on 08.06.2009, 21.06.2009 and 11.07.2009, the persons have recorded in the said survey was found to be availed the facility based upon the said surveys a show cause notice dated 18.07.2009 was issued to the petitioner calling upon him to show cause as to why the entertainment tax payable for the period of 13.03.2009 to 30.06.2009 may not be assessed. As per the department, the liability of entertainment tax would be Rs.10,13,473.80/- out of which the petitioner had already deposited Rs.5,75,672/- and thus, there was a deficiency of payment of entertainment tax amounting to Rs.4,37,801.80/-. The show cause notice also proposed to levy a penalty of Rs.20,000/-. On 04.08.2009, the petitioner replied to the said show cause notice and denied his liability to pay the tax.
5. On 16.03.2010, another notice was issued to the petitioner demanding a total entertainment tax for the period 01.07.2009 to 31.08.2009 amounting to Rs.6,83,877.70/-. It was stated that out the said amount, the petitioner had deposited an amount of Rs.3,29,895/- and thus there was a deficiency of tax amounting to Rs.3,53,982.70/- which was liable to be paid. A penalty of Rs.20,000/- was also proposed.
6. It is stated that before the petitioner could file a reply to the show cause notice dated 16.03.2010, an order came to be passed on 26.03.2010 assessing the entertainment tax for the period 13.03.2009 to 31.08.2009 amounting to Rs.7,91,783.50/- in addition thereto a penalty of Rs.20,000/- was also imposed.
7. The contention of the Counsel for the petitioner is that although a power is conferred upon the respondents to assess the dues on the basis of best judgment assessment under Section 12 of the Entertainment Tax Act, the same has to be a bona fide exercise of power and cannot be perverse or without any material. He further argues that Section 12 specifically provides for grant of an opportunity of hearing before passing of the order which has not been done. The Counsel for the petitioner further argues that with regard to the second show cause notice even the defence was not permitted to be filed and thus the order impugned suffers from the vice of arbitrariness having failed to observe the principles of natural justice.
8. The petitioner preferred an appeal thereof and made a statutory deposit of 1/3rd of the disputed amount. The said appeal was listed for hearing on 12.01.2016 and on the said date, the petitioner was directed to file written submission and the next date was fixed on 01.02.2016 however before the said date an ex-parte judgment came to be pronounced on 21.01.2016. The petitioner preferred an order recall application along with his written arguments which too was rejected on 30.03.2017 on the ground that the order dated 21.01.2016 was passed on merits.
9. The specific averments made in the writ petition with regard to not providing the opportunity of hearing has not been denied in the counter affidavit of the State even otherwise from the perusal of the orders there appears to be no hearing granted to the petitioner. Section 12 of the Entertainment Tax Act specifically provides for passing of the orders after giving proper and reasonable opportunity of being heard which has admittedly not been done. The appellate authority has further erred in dismissing the appeal on a day prior to the date fixed for hearing.
10. Accordingly, on the narrow ground on the violation of principles of natural justice, the impugned orders are set aside and the matter is remanded for adjudication before the District Magistrate to accord hearing the petitioner and pass orders, in accordance with law, after giving opportunity of hearing.
11. The refund of the amount deposited by the petitioner shall be subject to the fresh order being passed in terms of the remand as recorded above.
12. In view of the aforesaid terms, the writ petition is disposed off.
Order Date :- 21.10.2022
akverma (Pankaj Bhatia,J.)
