P.K.BALASUBRAMANYAN, J. - (1.) THIS writ petition filed by M/s. Nicco Jubilee Park Limited, hereinafter referred to as the Company, prays for the issue of a writ of certiorari to quash the notice dated 9.5.2003 issued by the Assistant Commissioner of Commercial Taxes, directing the company to furnish security for the purpose of issuance of a registration certificate under the Bihar Entertainments Tax Act, 1948 , hereinafter referred to as "the Act", for directing a refund to be made pursuant to a revisional order for quashing the orders and notices demanding tax under the Act and for a declaratory relief that until the respondents issue a proper notification under Sec. 5(2) of the Act specifying the company as a place of entertainment, the liability of the company under the Act does not commence and for other ancillary reliefs connected therewith. Subsequently, LA. No. 334/04 was filed for an amendment of the writ petition by seeking to challenge the two demands made to the company for the periods 3.6.2001 to 31.3.2002 and 1.4.2002 to 31.3.2003. The reliefs regarding security, registration and the refund claimed, stand taken care of by an interim order passed by, this Court in this writ petition on 3.12.2003 and the said order to the extent it is material reads thus : - - "Having heard both sides, we stay the direction of the Assistant Commissioner of Commercial Taxes (Incharge) Jamshedpur, Urban Circle, Jamshedpur (respondent No. 5) calling upon the petitioner to furnish the security bond by way of two sureties for sums of Rs. 20,00,000.00 (Rupees ' Twenty lacs) each, as a condition precedent for registration made under Sec. 6 of the Entertainments Tax Act, 1948 (hereinafter referred to as 'the Act '). The petitioner will deposit a sum of Rs. 5,000.00 (Rupees five thousand) towards security as provided by Sec. 7(2) of the Act. On such deposit being made, we direct the Assistant Commissioner . Commercial Taxes to consider the application for registration made by the petitioner and pass an order thereon without delay. We also direct the Deputy Commissioner of Commercial Taxes, Urban Circle, Jamshedpur (respondent No. 4) to pass appropriate orders forthwith on the application made by ¢ the petitioner on 15.10.2003 based on the revisional order regarding the attachment effected. The said order will be passed within ten days from today."
(2.) IT is submitted that pursuant to the interim direction, the company produced security for Rs. 5000.00 and it was granted a certificate of registration under Section 6 of the Act. The Government counsel also did not seek to re -open that aspect of the writ petition during the hearing and hence it has become unnecessary to advert to the aspect dealt within our order quoted above. What remains is the prayer of the writ petitioner for a declaration that the Act cannot be enforced against the company or its amusement park unless and until a notification in terms of Sec. 5(2) of the Act is issued by the Government. In other words, according to the Company, the Act can be applied and the company compelled to pay the tax under the Act, only on the issuance of a notification under Sec. 5(2) of the Act specifying the places of Entertainment for the purposes of Clauses (a), (b) and (c) of Sub -section (1) of Section 5 of the Act. In short, the contention of the petitioner is that even if the Act could be made applicable to the Park maintained by the company to which admission is restricted by tickets, the tax could actually be imposed and recovered from the company only if the Park is specified as a place of Entertainment by a notification in the official gazette in that behalf. This claim of the company is sought to be met on behalf of the respondents on various grounds and predominantly on the ground that the said plea or the claim for relief on that basis is barred by res judicata by virtue of the decision in WP (T) No. 2229 of 2002. On behalf of the Company, this plea was sought to be got over by pleading that the question raised by the company in this writ petition and the relief claimed herein was not the subject matter of the earlier writ petition and consequently, the dismissal of the earlier writ petition by this Court would not operate as res judicata on the present plea or bar the grant of relief claimed in this writ petition.
(3.) BEFORE proceeding to consider the merits of the case of the company based on the need for a notification under Sec. 5(2) of the Act, we think that it is proper to consider and decide the question of res judicata raised by the respondents. After all, if the plea of res judicata were to be upheld, it will be unnecessary to go into the merits of the contention raised by the company, though for the completion of the judgment and to avoid any remand of the proceedings to this Court, in case the Supreme Court were to disagree with the finding of res judicata, this Court may also consider the arguments on merits even if the plea of res judicata were to be upheld.;