SATISH CHANDRA, J. - (1.) HEARD Sri R. P. Singh learned counsel for the appellant and learned standing counsel for the respondents.
(2.) PRESENT writ petition has been preferred by the petitioner against the impugned order n dated 9-11-1993, passed by the District Judge, Gonda where an additional tax of Rs. 43, 200/- was levied on the petitioner. s The brief facts of the case are that the g petitioner is the owner and licensee of a picture hall being run under the name and style of "Vijai Picture Palace" located at Balrampur Town, District Gonda. On 9-10-1993 at 4.40 p. m., the Inspector of District Entertainment Officer, inspected the cinema hall premises, It was found that two exit lights were fused, toilets were dirty and a few seats in the bal­cony were torn. The district entertainment officer for not maintaining the picture hall properly and also for the deficiency as per U. P. Entertainment and Betting Tax Act, 1979, (hereinafter known as the Act), has issued the notice and finally a sum of Rs. 43, 200/- was levied on the petitioner by the impugned or­der dated 9-11-1993 (Annexure No. 1). Be­ing aggrieved with the impugned order, the petitioner has filed the present writ petition.
(3.) LEARNED counsel for the petitioner sub­mitted that under Section 3-A of the Act, the petitioner was authorised to charge for air cooled and air condition facilities @25 paisa per ticket. The same was also to be utilized for the maintenance of cinema premise. Dur­ing inspection on 9-10-1993, some minor ir­regularities were found in the cinema hall and on the spot, the opposite party No. 2 prepared inspection note and got a copy of the same received by the Manager of the Cinema Hall. They said that irregularities were minor in na­ture, which were corrected immediately there­after as mentioned in the petitioner's letter dated 11-10-1993. The opposite parties with­out considering the letter dated 11-10-1993 sent by the Manager has issued show cause notice on 25-10-1993 on the same ground which were mentioned in the inspection note. In the said show cause notice, the opposite party No. 1 directed the petitioner to deposit the entire amount of maintenance charges re­alized by the petitioner from the viewer as entertainment tax. The petitioner immediately on 27-1-1993 submitted his reply with the opposite party No. 1. Learned counsel sub­mitted that the assessee has already utilized a sum of Rs. 32, 309/- till October 1993 for the maintenance of cinema hall. He further sub­mitted that the irregularities found were mi­nor in nature; during interval period, the in­spection was made and the toilets were sup­posed to be cleaned after the interval; the re­pair of the seats on day to day basis was not possible and the bulbs which were fused were immediately replaced. He submitted that the cinema hall is well maintained and in good condition. The action taken by the opposite parties is against the provisions of Section 3(A) of the Act. For this purpose, he relied on the ratio laid down by this Court-in the case of Sarju Chitra Mandir, Rasra, District Ballia and another v. Commissioner of En­tertainment Tax, U. P., Lucknow and others, 1996 (14) LCD 864 : (1996 All LJ 1586) where it was mentioned that state of affairs found on a single day of inspection cannot clearly indicate that no maintenance was done at all before the date of inspection. He read out the para-8 of the said judgment, which is reproduced as under: - "Utilization of maintenance charges should be seen by the authorities in a reasonable man­ner. The cinema owner may be called upon to furnish the account of maintenance and if that is doubted, then further investigation may be made into the matter. If upon investigation the account furnished by the cinema owner is found to be incorrect or fabricated one, then the authorities may legitimately draw an inference that maintenance charges realized from the ticket holders were not either wholly or partly utilized towards maintenance. Scru­tiny of the maintenance account may not be exhaustive but only one of the modes to as­certain truth and that will sufficiently indi­cate whether the petitioners incurred any ex­penditure on maintenance. Simply because the entire cinema premises were not found neat and tidy on the date of inspection, no reasonable inference can be drawn that no maintenance was done by the petitioners in the cinema building at all. The respondents are supposed to act fairly, reasonably and justly but from their approach that no expen­diture was incurred on maintenance simply because there were some deficiency on the date of inspection, it can be said that they acted arbitrarily." ;