KOTHARI, J. - (1.) JARVIS, a jurist of his times once said "while taxes and death, both are inevitable, being taxed to death is not".
(2.) THE case present before this Court poses a question as to whether the entertainment tax collected by Panchayat Samiti under the Provisions of Rajasthan Entertainments (And Advertisement) Tax Act, 1957 (for short "the Act" hereinafter) discharges the liability of the assessee under the Act and, therefore, State Government through its Commercial Taxes Department again cannot demand the same tax on the same entertainment and for the same period. In fact, what should have been really a tug of war between the two departments of the State Government, its left and right arm, the right arm of the State Government, the Commercial Taxes Department without asking a question from the Panchayat Samiti, grabbed hold of the poor assessee and slapped upon him the demand of same entertainment tax, which it had already paid to the Panchayat Samiti. The chequered history of the case shows that the respondent- assessee has already been embroiled in a lot of litigation on this account when one shrewd C. T. O. in 1981-82 suddenly embarked upon the enquiry against the respondent-assessee and diving deep in the offices of Municipal Corporation, he came out with his find that the respondent-assessee's Cinema house located on Plot No. 1 in Suratgarh; which was allotted to him under a lease-deed by the Additional Collector-cum Secretary, Mandi Vikas Samiti, Hanumangarh in January, 1979 and the Cinema house thereon was constructed and started in the first week of October, 1981 was in fact situated in the municipal area and, therefore, panchayat Samiti had no jurisdiction to collect the entertainment tax from the said Cinema house. The Vikas Adhikari of panchayat Samiti, Suratgarh had by a letter dated 16. 9. 1981 informed the assessee-Cinema house that its Cinema house was located at outside the municipal area and, therefore, the tax payable under the Act on commencement of exhibition of films would be payable to the Panchayat Samiti, Suratgarh and the petitioner was required to make a security deposit of Rs. 2,000/- and to execute an agreement under the Rules on stamp paper of Rs. 7/ -. A certificate dated 4. 2. 1981 was also issued by the Executive Officer of the Suratgarh Municipality to the effect that the land in question had been auctioned by the Additional Collector-cum Secretary of Mandi Vikas Samiti, Hanumangarh and the same fell outside the jurisdiction of the municipality. Upon this, the petitioner deposited the said sum of Rs. 2,000/- by way of security and started payment of entertainment tax to the Panchayat Samiti, Suratgarh in the first instance for the period 4. 10. 1981 to 6. 1. 1982 amounting to Rs. 1,69,484. 70. When vide notice dated 28. 12. 1990, the C. T. O. , Suratgarh required the petitioner to pay the tax assessed for the said period amounting to Rs. 1,76,665/-, the assessee approached this Court by way of S. B. C. Writ Petition No. 1087/1999, which stood transferred to the Rajasthan Taxation Tribunal on its constitution and the transferred case R. T. T. No. 212/1995 was allowed in favour of the assessee by judgment dated 27. 8. 1998 and against such judgment the writ petition filed by the State of Rajasthan and C. T. O. before the Division Bench of this Court under Article 227 of the Constitution of India was also dismissed by this Court on 24. 9. 1999, attaching finality to the said judgment of Rajasthan Tax Tribunal.
(3.) THE litigation before this Court now by way of this batch of revision petitions filed by the Commercial Taxes Officer is for the period subsequent to the aforesaid period up to 6. 1. 1982 on account of different assessments for different periods of a quarter or monthly basis. Against the order of the Tax Board, Ajmer, which following the view of the Rajasthan Tax Tribunal, held in favour of the assessee that once the tax in question had been paid to the Panchayat Samiti as per Section 19-A of the Act, the assessee could not be required to pay again the same tax to the C. T. O. THE Tax Board upheld the order of the Dy. Commissioner (Appeals), who also had allowed the first appeal of the assessee on similar grounds. Shri Sangeet Lodha, learned Counsel for the Revenue submitted that for the period after 6. 1. 1982, the position became different inasmuch as the earlier certificate issued to the assessee on 4. 2. 1982 by the Executive Officer, Suratgarh Municipality was cancelled by the Executive Officer of Suratgarh Municipality on 2. 12. 1981 in pursuance of the correspondence of C. T. O. that the Cinema house of the assessee was located within the municipal limits but, the plot in question was sold by the Additional Collector-cum-Secretary, Mandi Vikas Samiti, Hanumangarh as the municipality did not have the powers to sell the land in the Mandi area. It is only on 2. 12. 1981 that the C. T. O. was informed by the Additional Collector-cum-Secretary, Mandi Vikas Samiti, Hanumangarh certifying that the Cinema house in question was located in the municipal limits of Suratgarh and the tax under the Act was payable to the State Government instead of to the Panchayat Samiti and cancelling the certificate which was issued to the contrary earlier. Learned Counsel, therefore, submits that for the period after 6. 1. 1982, the assessee was not justified in continuing to deposit the entertainment tax with the Panchayat Samiti Suratgarh up to October, 1986 and, therefore, the learned Assessing Authority was right in raising the demand of tax against the assessee for the said period after 6. 1. 1982 and the Tax Board, therefore, has committed an error in striking down the said demand and thus the present revision petitions filed by the Revenue deserve to be allowed. Per contra, Shri Baljinder Singh Sandhu, learned Counsel appearing for the respondent-assessee submits that in view of the on going confusion during the said period as to whether the Cinema house of the assessee was located in block area of Panchayat Samiti, Suratgarh or within the municipal area of Suratgarh Municipality, the assessee bona fide paid the tax under the Act to the Panchayat Samiti and when the C. T. O. raised the demand of entertainment tax for the same period, it had to file suit for injunction also against the said demand of C. T. O. and also persue his litigation before the appellate authorities under the Act, which ultimately resulted in his favour by allowing all the appeals by the First Appellate Authority as well as the Tax Board. He submits that temporary injunction was granted in favour of respondent-assessee on 11. 5. 1982 which was first upheld by Appellate Court, but after remand by this Court in Revision Petition, only on 21. 3. 1997, the learned Appellate Court while again issuing injunction against C. T. O. for past recovery only vacated injunction against future recovery. This injunction would cover the period in question upto October, 1986 and he says that after about 16 years, the C. T. O. could not be allowed to raised demand for the same period in 1997. He further says that there was never any mala fide intention of assessee in depositing the tax with Panchayat Samiti and for the fight between the two local bodies, the assessee cannot be blamed or punished. He says that rates of tax for both were same and according to him as against demand of C. T. O. of Rs. 20,35,955/-, assessee had paid Rs. 20,41,953/- to the Panchayat Samiti as tax for the said period. In view of this position taken by him and litigation pursued by assessee, he continued to deposit the said tax with the Panchayat Samiti, who jolly well continued to collect such tax from the assessee. Not only that, the assessee submits, the Panchayat Samiti insisted upon the Assessee during this period also to deposit the said entertainment tax with it. Torn between the two, the assessee continued to so deposit the said tax with the Panchayat Samiti in discharge of its obligation under the Act. ;