V. K. SINGHAL, J. - (1.) THIS order disposes of all above referred writ petitions as the questions involved in all these cases are common. M/s. Ram Prakash Cinema (hereinafter to be called as "the cinema") is carrying on the business of cinematograph exhibition and is assessed for the purposes of tax payable under the provisions of the Rajasthan Entertainments and Advertisement Tax Act, 1957 (hereinafter to be called as "the Act" ). The assessment under the Act is made on the basis of calendar month. In accordance with the provisions of section 6 (3), the assessee has applied that he may be allowed to make payment of entertainment tax due in accordance with the returns instead of making payment on the basis of stamps which were to affixed on each of the ticket. The provisions of section 6 (3) are reproduced as under : " 6 (3) Notwithstanding anything contained in sub-sections (1) and (2), the State Government, may, on the application of the proprietor of any entertainment in respect of which the entertainment tax is payable under this Act, allow such proprietor, on such conditions, as may be prescribed - (a) to compound the tax payable in respect of such entertainment for a fixed sum, or (b) to pay the amount of tax due - (i) by a consolidated payment of such percentage of the gross sum received by the proprietor or an account of payments for admission to the entertainment and on account of the tax, as the Government may fix, or (ii) in accordance with returns of the payments for admission to the entertainment and on account of the tax, or (iii) in accordance with the results recorded by any mechanical contrivance which automatically registers the number of persons admitted.
(2.) THE Government of Rajasthan has issued a Notification on July 9, 1959 in exercise of the powers under section 6 (3) of the Act, which reads as under : " Notification No. F. 7 (4)ET/58, dated May 7, 1959 In exercise of the powers conferred by section 6 (3) of the Rajasthan Entertainments Tax Act, 1957 (Act No. 24 of 1957), the Government of Rajasthan hereby prescribes, the following conditions on which the proprietors of divisional head quarters and Jaipur city may be allowed to pay the entertainments tax due in accordance with the returns of the payment for admission to the entertainments and on account of the tax, namely : CONDITIONs 1. THE proprietor shall deposit a reasonable security in cash in the Government treasury equivalent to the average amount of entertainment tax of one week. 2. He shall issue admission tickets in serial order, serial No. shall be printed on the tickets. No correction or modification shall be done in the tickets' printed number due to printing mistakes without prior intimation to the Sales Tax Officers or Assistant Commissioner, Excise and Taxation as the case may be and these will be done only in the presence of the Entertainment Tax Inspector who would also put his initials thereon. No book shall be brought into use for issue unless the first and the last tickets are sealed and signed by the Entertainments Tax Inspector concerned. 3. He shall clearly and separately specify on the admission ticket the rate of admission, amount of entertainments tax and their total. 4.THE admission ticket (not being a season ticket or ticket issued for more than one entertainment) shall be collected at the entrance of the purchaser in the entertainment hall and after tearing the ticket in two equal portions, one will be returned to the purchaser and the other retained by the management which shall be destroyed in the presence of the Entertainments Tax Inspector within 72 hours of the concerning show. 5.He shall not issue any torn tickets from booking office. 6.He shall maintain regular stock register of all the admission tickets (including complimentary tickets) of all classes which shall be signed and sealed on each page by the Entertainments Tax Inspector concerned. All fresh tickets as and when received from the press shall be entered in the stock register immediately. Entries about issue of series of tickets for the booking office shall be accounted for as and when given. Note regarding the exhaustion or close of a series shall be given when done with. 7.He shall issue a separate ticket equivalent to the value of different of the two classes in case the purchaser of any ticket wishes to change into a higher class. 8. He shall submit a daily collection report showing the number of tickets in form 'f' as prescribed under rule 17 of the Rajasthan Entertainments Tax Rules, 1957, on the following day to the Sales Tax Officer or the Assistant Commissioner, Excise and Taxation, as the case may be. THEse collection reports should be issued from the bound books bearing printed book No. and serial number. 9. He shall deposit the entertainments tax collected by him in the Government treasury in the appropriate head of account on the first day of each week, i. e. , Monday and if Monday happens to be holiday to the next working day. A copy of such treasury challan shall be enclosed with the daily returns to be presented to the officers mentioned in the condition No. 8. Failure to deposit the amount of tax will tantamount to an office within the meaning of section 10 (3) (c) of the Act, and without prejudice to the power vested in the Government to recover the due amount of tax. THE outstanding amount due from him shall be recoverable by the Sales Tax Officer or Assistant Commissioner from the amount of the security deposited under condition No. 1 above. 10. He shall show all account books to any officer authorised under Rajasthan Entertainments Tax Act, 1957, for inspection at all reasonable times and shall furnish other information pertaining to the entertainments when called upon to do so by the Sales Tax Officer or Assistant Commissioner, Excise and Taxation as the case may be including a return in form 'g' as prescribed under rule 17. 11. He shall make entries of the sale of tickets of different classes in the daily collection report before interval of the show and the return of the booking of each show shall be ready for inspection immediately after the interval. 12. Any officer of the Entertainments Tax Department no below the rank of an Inspector shall have power to check the account books, registers and other concerning record and all tickets or portions of tickets in the possession of the proprietor or any of his employees relating to the entertainments and if deemed necessary he may seize or freeze all or any of the above documents after preparing an inventory a copy of which will be given to the proprietor. 13. THE sanction shall be periodical and subject to renewal every year. Application for renewal shall be made in writing by the proprietors of the entertainment at least one month before the expiry of sanction. 14. Failure to comply with any of the aforesaid conditions shall make the proprietor liable to prosecution under section 10 of the Act and the concession of payment of entertainment tax through return system may also be withdrawn. 15. Regarding interpretation of the aforesaid conditions decision of the Commissioner, Excise and Taxation, Rajasthan, Udaipur shall be final and binding. " The submission of the learned counsel for the petitioner is that the notification dated May 7, 1979 has provided that if there is any failure to deposit the tax, it will amount to an offence within the meaning of section 10 (3) (c) of the Act and this condition contemplated by clause 9 of the notification is ultra vires the authority conferred by section 6 (3) of the Act because the notification cannot create offence which is not authorised by the Act. It has further been submitted that there is no provision like section 10 (3) (c) of the Act as has been mentioned in the said clause and that the tax become due only when the assessment is made and, therefore, unless assessment is made and demand is created, there is no liability for making payment and no penalty could be levied. It has further been submitted that the Act requires the submission of returns monthly and in any case penalty of more than Rs. 500 cannot be levied. It has also been argued that because of the financial stringencies, the assessee could not submit the returns and make payment of tax in time and there was no mens rea. The default is only of a technical nature without involving any mens rea. In the present matters, the assessments were framed under section 5-B of the Act by the Commercial Taxes Officer, Entertainment Circle, Jaipur, and penalty has been levied under section 10 (3) (b) of the Act. Against the order of penalty, an appeal was preferred to the Deputy Commissioner (Appeals-II), Commercial Taxes Department, Jaipur, wherein, looking to the delay involved and the conduct of assessee, the levy of penalty was upheld. From the perusal of the provisions of sub-section (3) of section 6, it is clear that this concession can be availed of by the assessee in the specified circumstances. The State Government has been authorised to prescribe the condition with regard to payment of tax and the notification which has been issued on May 7, 1959 and published in Gazette on July 9, 1959 is only in exercise of that power. Both the learned counsel for the parties have not been able to show that there was any provision in the Act which is an offence under section 10 (3) (c ). Besides this section authorises to prescribe the conditions for payment of entertainment tax and it does not authorise the State Government to say that non-payment of tax shall amount to an offence. The condition No. 9 of the Notification dated May 7, 1959 has, therefore, to be ignored and it has to be seen whether the offence has otherwise been committed or not. Section 10 (3) of the Act reads as under : " 10 (3) (a ). The proprietor of an entertainment or any person employed by him in any place of entertainment who admits any person to any place of entertainment in contravention of the provisions of sub-section (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 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 penalty - (i) in respect of cases referred to in clause (a) in 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 in sub-clause (ii) of clause (b) in addition to the amount of tax payable by him a sum not exceeding rupees five hundred or double the amount of tax evaded whichever is higher. " From the perusal of the above provision, it would be evident that if proprietor of an entertainment fails to pay the tax due, then he is liable for penalty not exceeding Rs. 500. If the offence relates to any other contravention of the Act or the Rules made thereunder, then also penalty could be levied for a sum not exceeding Rs. 500. It appears that in clause 9 of the notification dated May 7, 1959, there is only a printing mistake wherein, the provisions of section 10 (3) (c) has been mentioned, whereas it should have been section 10 (3) (b ).
(3.) DUE opportunity was given to the assessee before taking penal action and, therefore, it cannot be said that there was no any prejudice to the assessee and more so, this objection was never taken before the assessing authority or before the appellate authority. The stress of the learned counsel for the petitioner that the words "tax due" used in section 10 (3) (b) (i) refers to the amount of tax which is assessed and not the advance tax which is payable along with the returns has to be examined with reference to the other provisions of the Act. Section 5 of the Act provides that entertainment tax shall be levied in respect of each person admitted on payment and shall be calculated and paid on the number of admission, and mentions that entertainment tax shall be due and recoverable from the proprietor and the proprietor shall submit such returns relating to payment for admission to an entertainment to such authority. The provisions of sub-section (4) of section 6 provides that restrictions imposed by sub-sections (1) and (2) shall not apply to any entertainment in respect of which the tax due is payable in accordance with the provisions of sub-section (3 ). Sub-section (4) of section 6 makes it clear that payment under sub-section (3) of section 6 is in respect of tax due and, therefore, non-compliance thereof would be liable to penalty under section 10 (3) (b) (i ). Though the words "tax due" may refer to the tax which is due and payable on the basis of assessment as have been used in other Acts, but so far as the Rajasthan Entertainments and Advertisement Tax Act is concerned, the provisions of sub-section (4) of section 6 have made it clear that payment of tax required to be made under sub-section (3) of section 6 is in respect of tax due. The provisions of sub-section (4) of section 6 have not been challenged and, therefore, if the tax in accordance with the notification dated May 7, 1959 has not been paid, then it would be a contravention in accordance with the provisions of section 10 (3) (b) (i) of the Act. According to the notification dated May 7, 1959 the tax has to be deposited of the week on the next Monday. An argument was also raised that the department is collecting cheques in advance and in proof thereof, office order dated March 17, 1983 (annexure 1) has also been annexed along with the writ petitions, from which it was alleged that the certification of the tickets is done only if cheque is received in advance. Not having come to the conclusion that the tax becomes due in accordance with the provisions of sub-section (3) of section (6) by virtue of the notification dated May 7, 1959 on each of the Monday for the preceding week, the non-payment thereof is a contravention. The provision of penalty for non-payment of tax does not require that to penalise, there should be mens rea. The failure to pay tax makes a person liable for penalty. Non-payment of tax of each of the week which is required to be paid in accordance with the notification is an offence, for which the penalty up to Rs. 500 could be levied. The submission of the learned counsel for the petitioner that the maximum penalty could be of Rs. 500 in respect of the defaults in payment of tax for all the 4 weeks can be to the maximum amount of Rs. 500, is not the correct interpretation of the provisions of section 10. The words "fails to pay the tax due" would mean fails to pay the tax for each of the week and, therefore, the penalty could be levied for each of the week. If the assessee has submitted the cheque in advance then the position may change, inasmuch as the respondents have by their own practice accepted the cheques in advance. If such cheques have been given in advance and of the due dates and have not been dishonoured, then no penalty could be levied. If the cheques have been given of a date, which is later than due date or if they have been dishonoured, then the petitioner cannot claim the benefit of giving cheque in advance. In the result, the writ petitions are partly allowed. The petitioner is held liable for penalty in respect of the delay in making payment for each of the week, but if the cheques have been given in advance of the due date as alleged and have been encashed from the bank, then for the delay of encashment of such cheques no penalty can be levied. If the cheques have been given of the date, which is later than the due date or dishonoured then the petitioner would be liable for penalty. No order as to costs. Petitions partly allowed. ;