- (1.) HEARD learned counsel for the parties.
(2.) THIS writ petition is filed against the order passed by the Rajasthan Taxation Tribunal dated 23rd Sept, 1998 in RTT No. 44/97, by which it has reduced the penalty levied on the respondent-assessee under Sec. 10 of the Rajasthan Entertainment and Advertisements Tax Act, 1957 from Rs. 64,500/- to Rs. 500/ -. The facts, in brief, leading to this petition are that on 15. 11. 96 on a surprise checking of respondent Theater M/s. hari Om Talkies, the Assessing Officer, Viz. the Assistant Commercial Taxes Officer, found that for different classes of seats in all 129 tickets had been issued improperly inasmuch as the same were not properly stamped by affixing the stamps of Entertainment Tax and had not been entered in the DCR (Daily Collection Report), and on that basis penalty of Rs. 500/- per ticket totalling to Rs. 64,5000/- was imposed. On appeal before the Tribunal, the Tribunal following its earlier judgment in Shyam Kumar Regal Cinema vs. State of Rajasthan & Ors. (1), reduced the penalty to Rs. 500/- and directed refund of the additional amount. Aggrieved with the said order, the State has preferred this petition. It has been contended by the learned counsel for Revenue Sec. 10 (3) envisages Penalty of Rs. 500/- on each ticket issued irregularly, and therefore, the penalty has been validity imposed. On the other hand, it has been contended by the learned counsel for the assessee that under sub-sec. (3) of Sec. 10 on one occasion penalty imposable is not exceeding Rs. 500/- in cases falling under clauses (a) and (b) (i & iii) of Sub-Sec. (3) of Sec. 10 and a penalty exceeding Rs. 500/- is envisaged only in cases falling in Sub-clause (ii) of clause (b) of sub-sec. (3) of Sec. 10 that too in cases when it is found that the tax is avoided by more than Rs. 500/- is envisaged only in cases falling in sub-clause (ii) of clause (b) of Sub-Sec. (3) of Sec. 10 that too in cases when it is found that the tax is avoided by more than Rs. 500/- on account of such default, and therefore, the Tribunal has not committed an error in reducing the penalty for the alleged irregularities founding maintaining the Daily Collection Report. Sec. 10 of the Act of 1957 reads as under:- " 10. Offence and penalties- (1) Notwithstanding anything contained in any law for the time being in force, a ticket for admission to an entertain shall not be resold for profit by the holder thereof. (2) Whoever re-sells any ticket for admission in contravention of the provisions of sub-section (1) shall, on contravention of the provisions before a Magistrate, be liable to pay fine which may extend to two hundred rupees. (3) (a) The proprietor of an entertainment or any person employed by him in any place of entertainment, who admit any person to any place of entertainment in contravention of the provisions of sub-Sec. (1) or sub-section (2) of Section 6, or (b) the proprietor of an entertainment who- (i) fails to pay the tax due from him under this Act within the prescribed time, or (ii) fraudulently evades the payment of tax due from him under this Act, or (iii) Contravenes any of the provisions of this Act or the rules framed thereunder for which no other penalty has been provided under this Act. Shall be liable to pay by way of (i) in respect of cases referred to in clause (a) and sub- clauses (i) and (iii) of clause (b), in addition to the amount of tax payable by him, a sum not exceeding Rs. 500/-; and (ii) In respect of cases referred to in sub-clause (ii) of clause (b) in addition to the amount of tax payable by him a sum not exceeding Rupees Five hundred of double the amount of tax evaded whichever is higher. (4) The prescribed authority not below the rank of a Assistant commercial Taxes Officer may, after affording a reasonable opportunity of being heard to the person affected, impose the penalty mentioned in sub-section (3) (5) The person affected may, within one month of the communication of the order directing payment of any sum by way of penalty under sub-section 93), appeal to the prescribed authority. "
(3.) A perusal of the aforesaid provision goes to show that sub- Secs. (1) and (2) of Sec. 10 deal with the question of unauthorised resale of tickets issued by entertainer. Under sub- sec. (1) resale of the tickets for admission to entertainment is prohibited and sub-sec. (2) provides for a fine not exceeding Rs. 200/- by a Magistrate on a person who is found re-selling tickets in contravention of the provisions of this Section. Apparently, we are not concerned with these provisions in this case. We may also notice here that corresponding to imposition of entertainment tax a duty has been cast on the person seeking admission to an entertainment not to enter or obtain tickets without payment of tax leviable under the Act and any person who seeks admission to entertainment without payment of tax is similarly liable to a fine not exceeding Rs. 200 on conviction by a Magistrate. Thus, the resale of tickets and seeking admission t the entertainment without payment of entertainment tax are both made punishable offences. On the other hand, sub-sec. (3) unfolds a scheme of levy of penalty on contravention made by an entertainer. The contraventions envisaged for which penalty is liable are admitting any person to any place of entertainment in contravention of provision of Sub-sec. (1) or sub-sec. (2) of Sec. 6 that is to say (1) without collecting the amount of Entertainment Tax payable on admission to such entertainment (2) failure to pay the tax, by the entertainer under the Act within the prescribed time, (3) fraudulent evasion of the payment of the tax due, by the entertainer under the Act any lastly (4) for contravention of any of the provisions of the Act or rules framed thereunder for which no other penalty has been provided under the Act. ;