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TMI Blog2001 (2) TMI 1005X X X X Extracts X X X X X X X X Extracts X X X X ..... n the light of aforesaid circular and enhance ment has been made as intended under the circular by estimating the minimum receipts at 50 per cent of the sitting capacity, were set aside and all cases were remanded to the assessing authority for passing fresh assessment orders in accordance with law. 2. The impugned circular, as a matter of fact, after showing concern about the less recoveries from the cinema theatres at various townships within the State of Rajasthan far below their sitting ca pacities and after instructing the officer to have periodical checking and laying down the norms for conducting regular checking where re turned collection show less than the minimum estimated occupancy during the show, has issued definite instructi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n directed to give reasons only in case of not making assessment above minimum stated level. 4. To us, the aforesaid directions defy all canons of fair proce dure and smacks not only of arbitrariness and usurping the statutory functions of assessing authority to make assessment of entertainment tax in accordance with the provisions of Act and levy of charge, with artificially fixing minimum charge at 50 per cent of the city capacity irrespective of actual occupancy as disclosed in the return by assum ing it to be incorrect unless contrary is shown by the assessee. These directions amount to legislating a legal fiction raising a compulsive presumption against the assessee. What has not been provided by Legislature, has been enacted by admi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessments at a particular level with mandate to give reasons for not framing the assessment not in terms of such direction is clearly ultra vires the authority of Commissioner. 7.. The only contention raised by the learned counsel for the Revenue is that in none of the assessment orders the Commercial Taxes Officer has referred to the circular in question, and therefore, it ought not to be assumed that the assessment has been made on the basis of circular. 8.. However, the arguments fails to impress in the totality of the circumstances. The Deputy Commissioner (Appeals) found as a fact that no reason has been given for not accepting the correctness of the return filed by the assessee and whatever is stated with ref erence to other tow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stained even on the ground that it has been made by taking into consideration the material which is partly relevant and partly irrelevant and it is not possible to detect the degree of decision effected by irrelevant consideration. The entire order stands vitiated. 11.. We, therefore, are in agreement with the Tribunal that the circular dated August 14, 1980 is ultra vires the powers of the Commissioner and has been issued in violation of the provisions of Act and also violates article 14 of the Constitution of India deserves to be quashed and that the assessment orders in question are to be set aside and remanded back to the assessing authority for decision de novo in accordance with law. 12.. All the petitions fail and are hereby dism ..... X X X X Extracts X X X X X X X X Extracts X X X X
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