Decided on February 24,1992

Sri Srinivasaatre Appellant


Quadri, J. - (1.)This special appeal u/s 9E(1) of the Andhra Pradesh Entertainments Tax Act, 1939 ('the Act') is filed by Shri Srinivasa Theatre, challenging the validity of the order of the Commissioner of Commercial Taxes, Andhra Pradesh, Hyderabad dated 31-5-1984 in CCT's Ref. L. III(i) 1422/84 confirming the order of the Deputy Commissioner, Commercial Taxes, Kakinada dated 24-2-1984 in Ref. A7/4460/82 passed under rule 49(2) of the Andhra Pradesh Entertainments Tax Rules, 1939 ('the Rules'). The appellant is running a cinema theatre. For the assessment year 1977-78, the proprietor of the theatre entered into an agreement with the department u/s 5(1) of the Act on 4-10-1977 which was valid up to 3-10-1978. At that time, the seating capacity of the theatre was 917.The appellant reduced the seating capacity to 632 with the permission of the Licensing Authority and subsequently entered into fresh agreement on 1-11-1977, revising the earlier agreement, for the period from 7-11-1977 to 6-11-1978. The Deputy Commissioner, Commercial Taxes, Kakinada, issued notice to the appellant under rule 49(2) to show cause as to why the revised agreement reducing the fixed sum of entertainment tax payable should not be set aside and the original tax liability been forced. After giving due opportunity to the appellant, the Deputy Commissioner by his proceedings Ref. A7/4460/82 dated 24-2-1984 revised the order of the Commercial Tax Officer, Ramachandrapuram dated 1-11-1977. The appellant filed a revision against the said order of the Deputy Commissioner before the Commissioner of Commercial Taxes, Andhra Pradesh, Hyderabad, who by his order dated 31-5-1984 in CCT's Ref. L.III (i) 1422 of 1984 confirmed the order of the Deputy Commissioner and dismissed the revision. The correctness of this order is assailed in this special appeal.
(2.)Mr. Srinivas appearing for Mr. A.K. Jaiswal, the learned counsel for the appellant, urged the following contentions:
(1) That the order passed by the Commercial Tax Officer revising the agreement pursuant to reduction in seating capacity is legal and valid in law;

(2) That u/s 9C, the order could have been revised within 4years from 1-11-1977 and as the order of the Deputy Commissioner was passed on 24-2-1984, it is beyond limitation; and

(3) That even though no time limit is fixed for exercise of jurisdiction under rule 49(2), the Deputy Commissioner cannot exercise the power after 6 years. Therefore, the order of the Deputy Commissioner as confirmed by the Commissioner is wholly illegal.

(3.)The learned Government Pleader for Commercial Taxes raised a preliminary objection with regard to the maintainability of the special appeal. He contends that no appeal lies against an order of the Commissioner passed under rule 49(2) u/s 9E, special appeal is provided only against an order passed by the Commissioner of Commercial Taxes u/s 9C suo motu and as the order under appeal is not passed u/s 9C, the special appeal is not maintainable.

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