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TMI Blog2011 (4) TMI 1031X X X X Extracts X X X X X X X X Extracts X X X X ..... nment Pleader for the Respondent JUDGEMENT R. M. Chhaya, J:- By way of this petition, under article 226 of the Constitution of India, the petitioners have prayed as under:- "(A) Your Lordships may be pleased to issue a writ of mandamus and/or in the nature of mandamus and/or any other appropriate writ, direction and order quashing and setting aside the order, annexure F and further be pleased to direct the respondents to charge from December 23, 1988 to August 21, 1990 only consolidated tax of Rs. 2291.95 per week and refund the excess recovery made by the respondents to the tune of Rs. 2,15,953.19. (B) That pending the hearing, admission and final disposal of this writ petition your Lordships may be pleased to restrain the respondents by appropriate ad interim relief or preventing the respondents from implementing, effectuating or executing the impugned order, annexure F, or to make any recovery of the amount stated in the said order and further be pleased to restrain the respondents from claiming and/or recovering any amount in excess of the consolidated tax duly determined vide annexure F. (C) That an ex parte ad interim injunction in terms of paragr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Petitioner No. 1 on grant of such permission under section 6 of the Act paid consolidated tax as determined by the authority for the period from December 23, 1988 to August 21, 1990. Petitioner No. 1 on grant of such application to pay consolidated tax under section 6 of the Act was discontinued the benefit of exemption granted earlier under section 29 of the Act. On the basis of departmental instructions issued by the Commissioner of Entertainment Tax in the meeting dated February 14, 1989, the respondent-authority passed an order of reassessment of entertainment tax with effect from December 23, 1988 to August 21, 1990 on the basis that the petitioner-cinema was entitled to only exemption under the notification as the Janta Cinema under section 29 of the Act and claimed Rs. 5,52,315.05 as additional entertainment tax payable by the petitioner. Even though the petitioner-cinema was granted permission under section 6 of the Act and had already paid consolidated tax as and when it accrued. The petitioners being aggrieved by the said action of the respondent by issuing order dated November 18, 1991 (annexure F hereto) have filed the present petition. The petitioners also cha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the case of the petitioners or not and, therefore, it was submitted that the impugned action of recovery by the respondent deserves to be quashed and set aside and further the respondent-authorities may be directed to refund the excess recovery made by them. As against this, Ms. Mehta, learned AGP, has supported the impugned order dated November 18, 1991. Relying upon the provisions of the Act it was pointed out that once the benefit of exemption is availed of under section 29 of the Act the petitioners had no inherent right to discontinue the same after one year and apply for payment of the entertainment tax as a consolidated tax as provided under section 6 of the Act. It was submitted that on examination of the facts of each similarly situated cinemas, the State Government took a conscious decision to recover differential amount. She heavily relied upon resolutions of the State Government dated August 19, 1987, July 26, 1989 and August 18, 1989 and pointed out that Janta Cinema had availed of the benefit of exemption under section 29 of the Act and under no circumstance can be permitted to pay entertainment tax as a consolidated tax as provided under section 6 of the Act. M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n on such conditions as may be specified therein. Exemption is an exception from payment of tax. The apex court has interpreted word "exemption" in the case of Union of India v. Wood Papers Ltd. [1991] 83 STC 251 (SC) ; AIR 1991 SC 2049 as under (pages 254 and 255 in 83 STC):- "4. ...Literally exemption is freedom from liability, tax or duty. Fiscally it may assume varying shapes, specially in a growing economy. For instance tax holiday to new units, concessional rate of tax to goods or persons for limited period or with the specific objective, etc. That is why its construction, unlike charging provision, has to be tested on different touchstone. In fact an exemption provision is like an exception and on normal principle of construction or interpretation of statutes it is construed strictly either because of legislative intention or on economic justification of inequitable burden or progressive approach of fiscal provisions intended to augment State revenue. But once exception or exemption becomes applicable no rule or principle requires it to be construed strictly. Truly speaking, liberal and strict construction of an exemption provision are to be invoked at different stages o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s come to the conclusion that benefits under sections 6 and 29 of the Act are of different nature and has also held that a cinema is not entitled to benefit under section 6 of the Act and also general exemption under section 29 of the Act at a time. However, in the instant case on completion of the first year the petitioners have not availed of benefit of general exemption under section 29 of the Act but have opted for payment of tax by way of consolidated tax as provided under section 6 of the Act, which is duly granted by the respondent-authority, as the petitioners have not availed of both the benefits at a time. The respondent-authorities while passing the impugned order has wrongly presumed that the orders passed under section 6 of the Act permitting the petitioners to pay consolidated tax stand cancelled with effect from December 23, 1988 as per amendment in the Act, in view of the fact that the very authority has also passed orders for the subsequent years under section 6 of the Act. We, therefore, find that the order, impugned in the present petition is passed in a mechanical manner and the same deserves to be quashed and set aside. This court in the case of Arman Cinem ..... X X X X Extracts X X X X X X X X Extracts X X X X
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