9911796707
TMI Blog2004 (9) TMI 633X X X X Extracts X X X X X X X X Extracts X X X X ..... orities during the period in question, viz., March 28, 1997 to March 28, 1998 and in pursuance of such visits, the petitioner was served with a show-cause notice by Agricultural Income-tax Officer, Amusement Tax section on November 20, 1997 to show cause why penal action under sections 4B and 11A of the Bengal Amusements Tax Act, 1922 should not be taken against the petitioner. In the said notice the respondent No. 1 informed the petitioner that he had visited Regal Cinema on November 18, 1997 during the later half of the matinee show and noticed a number of irregularities, notably the following: (i) While the sale statement for the show recorded the number of viewers to be 256 only, more than 400 viewers were found inside the hall on a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bmitted by the proprietor but he refused to accept the version of the petitioner and estimated that the occupancy rate was much higher than the one shown by the petitioner. According to his physical verification the occupancy rate was estimated to be 67.11 per cent. However, going by his best judgment he held that there was 35 per cent sale of houseful capacity and accordingly he made the assessment at Rs. 14,42,042. After adjusting for entertainment tax already paid of Rs. 6,99,755.15, the balance tax payable by petitioner was Rs. 7,42,286.85 in terms of section 8A of the Bengal Amusements Tax Act. Furthermore for delay in submission of the returns for which no reasonable cause was shown, he imposed a penalty of Rs. 50,000 under sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a person who is in default as regards supplying information. He must not act dishonestly, or vindictively or capriciously because he must exercise judgment in the matter. He must make what he honestly believes to be a fair estimate of the proper figure of assessment, and for this purpose he must be able to take into consideration local knowledge and repute in regard to the assessee's circumstances, and his own knowledge of previous returns by and assessments of the assessee, and all other matters which he thinks will assist him in arriving at a fair and proper estimate; and though there must necessarily be guess-work in the matter, it must be honest guess-work. It is note worthy that the Commissioner has also admitted in his orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... July 9, 2003 March 31, 1995 to March 28, 1996 10,42,340.50 6,000 July 9, 2003 March 29, 1996 to March 27, 1997 9,36,696.10 3,000 July 9, 2003 March 27, 1998 to March 25, 1999 8,45,469.50 (As per returns submitted) Assessment not yet completed March 26, 1999 to March 30, 2000 10,35,871.55 (As per returns submitted) -do- March 31, 2000 to March 29, 2001 The learned Advocate for the State was also directed to furnish the average percentage of occupancy o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed from Rs. 50,000 to Rs. 10,000 after the second appeal, a question of law has been raised which is not satisfactorily answered by the respondent. The provision for appeal under section 11E provides for confirmation, reduction, enhancement or annulment of the assessment but there is no similar provision in respect of the penalty that may be imposed under section 8A(2) by way of surcharge or additional surcharge. The learned Advocate for the petitioner rgues that since the Commissioner has, after considering the circumstances of the case and the hardship in running the cinema hall considered a reduced penalty of Rs. 10,000 as proper and reasonable, he has by implication condoned the delay in submitting the returns. As the statute stands ..... X X X X Extracts X X X X X X X X Extracts X X X X
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