Gopal Krishan Vyas, J. - (1.) BY way of filing the present first appeal under Section 96, C.P.C., the appellant has challenged the judgment and decree dt. 22.12.1988 passed by Additional District Judge, Bhilwara in Civil Misc. Case No. 23/84 (39/84) whereby the suit filed by the plaintiff -appellant was dismissed.
(2.) ACCORDING to the facts of the case, a suit was filed by plaintiff -appellant challenging the assessment made by the Commercial Taxation Officer, Bhilwara on the ground that the said assessment made by the respondent No. 2 was without jurisdiction. It was averred in the plaint that the plaintiff -appellant started a business in the name and style of Jegotia Video Tea House on 21.06.1983 to serve tea to customers. On 04.07.1983, the Inspector of Commercial Taxes Department inspected the shop in question and it has been said that the aim of the shop is to serve the tea to their customers and not to entertain the customers. On 06.07.1983, a notice was issued by the Commercial Taxation Officer, Bhilwara -respondent No. 2 to plaintiff to attend his Office on 09.07.1983 for the purpose of assessment under Rajasthan (Entertainment & Advertisement) Tax Act, 1957 (hereafter referred to as "the Act of 1957 only"). A detailed reply was filed by the plaintiff -appellant before the respondent No. 2 and it was submitted that shop is not covered under the Act of 1957, therefore, she is not liable for tax and assessment under the Act of 1957 and; therefore, the proceedings may be dropped. Further, it was averred in the plaint that the respondent No. 2 without considering the reply in right perspective passed the assessment order and demanded Rs. 2,920.80, Rs. 6,875.10 and Rs. 6,789.55 from the plaintiff -appellant while holding that shop is not covered under the Act of 1957. Therefore, it was averred in the suit by the plaintiff -appellant that the said assessment order was ab -initio wrong, illegal and without jurisdiction. It was further averred in the plaint that under the said demand the respondent No. 2 forcibly took away the goods and now they are going to auction it. In these circumstances, a declaration was sought by way of filing suit with the prayer that the assessment made by the respondent No. 2 may be declared illegal and without jurisdiction and total demand of Rs. 16,587.84 may be held to be not recoverable from the plaintiff -appellant. In reply to the suit, the respondents contended before the trial Court that the plaintiff 's shop is covered under the Act of 1957, therefore, the assessment was rightly and legally made and the respondents have jurisdiction to assess the shop for the purpose of tax under the provisions of the Act of 1957. After filing reply, the learned trial Court framed three issues, which are as follows: 1. Whether the order of the Commercial Taxes Officer is without jurisdiction and void? 2. Whether this Court has jurisdiction to hear the suit specially when there is a provision for appeal under Rajasthan Entertainment and Advertisement Tax Act, 1957. 3. Any other relief.
(3.) AFTER framing the issues as above, both the parties led their evidence and produced certain documents. After hearing both the parties, the learned trial Court dismissed the suit vide impugned judgment and decree dt. 22.11.1988.;