PRAKASH KRISHNA, J. - (1.) BY means of the present petition, the petitioner has challenged the order of the District Magistrate, Azamgarh dated 10-1-2005 whereby the District Magistrate has asked the petitioner to deposit a sum of Rs.19,95,890/- as the same was unauthorisedly realised by her from the cinema goers.
(2.) THE State Government, in order to provide entertainment and boost up cinema in the villages and remote areas promulgated schemes from time to time known as 'grant-in-aid facility' to new cinema halls. By the Government orders dated 9-11-2004, 7-12-1998 and 11-8-2000, the State Government provided grant-in-aid facility to newly constructed permanent cinema buildings subject to the fulfillment of terms and conditions mentioned therein. The petitioner herein, applied for and was granted exemption from deposit of entertainment tax under the scheme dated 11-8-2000. In pursuance of the said scheme, the petitioner was provided grant-in -aid facility by order dated 10-9-2001 for a period of five years under the scheme dated 11-8-2000, whereby the petitioner's cinema hall was granted complete exemption from payment of entertainment tax for a period of five years. The licence having been granted to the petitioner, she started exhibition of films being lincencee of Raj Palace Phoolpur, Azamgarh under U.P. Cinematograph Rules, 1951. She was served with a notice dated 31-7-2004 by the Entertainment Tax Officer, Azamgarh asking her to pay a sum of Rs.19,95,890/-, the sum realised by her from the cinema goers as entertainment tax. The said notice was given on the ground that under the G.O. dated 11-8-2000, the petitioner was not authorised to collect entertainment tax from the cinema goers and the entertainment tax was unauthorisedly collected by her. A reply dated 9-9-2004 was submitted on the pleas inter alia that there is no fault on her part and the statements of realisation of entertainment tax were duly submitted to the officer concerned with Entertainment Department from time to time but no objection was raised there at any point of time. This being so, the amount thus realised by the petitioner from the cinema goers cannot be recovered from her and the matter be reconsidered. The said reply/representation was dismissed by the Entertainment Tax Commissioner on 23-12-2004. In consequence of the order passed by the Entertainment Tax Commissioner, a fresh demand notice dated 10-1-2005, impugned herein, was served on the petitioner by the District Magistrate, Azamgarh. In the counter affidavit, the stand taken is that under the G.O. dated 11-8-2000, the cinema owners were granted total exemption from payment of entertainment tax, but under the said G.O. such cinema owners were not entitled to realise the entertainment tax from the cinema goers. There being no provision with respect to entertainment tax realised by the cinema owners from the cinema goers by making adjustment entry in the treasury, the petitioner is not entitled to retain the entertainment tax realised by her. The petitioner has unauthorisedly realised a sum of Rs. 19,95,890/- as entertainment tax from the cinema goers and the said amount is refundable to the State exchequer. The impugned demand notice has been sought to be justified in the light of the provisions contained in the G.O. dated 11-9-2000 as also the provisions as contained in U.P. Entertainments & Betting Tax Act, 1979 (hereafter referred to as the Act).
(3.) IN the rejoinder affidavit, it is contended that on a close scrutiny of grant-in-aid scheme dated 11-8-2000, under which the petitioner has been permitted to raise complete construction of permanent cinema building, the petitioner is not liable to deposit the entertainment tax for the period mentioned therein. The petitioner has been provided the benefit of the said scheme by virtue of the order dated 10-9-1991. A conjoint reading of the scheme and the order clearly establishes that the benefit of grant-in-aid has been provided to the new entrepreneurs who have constructed cinema buildings after fulfilling the conditions laid down therein, besides reiteration of the pleased raised in the writ petition.;