Allahabad High Court Judgement

Allahabad High Court Judgement

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JUDGEMENT HEADLINE : Benefit Of Scheme Dated 3.11.1999 From Date Of Installation/ Upgradation.
JUDGEMENT TITLE : M/S Nandan Talkies Vs. State Of U.P. Thru' Secy. Tax & Institutional Finance & Anr On 08/26/2010 By Allahabad High Court
CASE NO : WRIT TAX NO. 503 OF 2005
CORAM : Hon'ble Yatindra Singh,J. And Hon'ble Rajes Kumar,J

HIGH COURT OF JUDICATURE AT ALLAHABAD

COURT NO. 37.


CIVIL MISC. WRIT PETITION NO. 503 OF 2005
M/s. Nandan Talkies, Aligarh V. State Of U.P. & Another.

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Hon'ble Yatindra Singh, J.
Hon'ble Rajes Kumar, J.


1.The Main Question Involved In The Writ Petition Revolves Ground The Benefit Granted By The Scheme Dated 3.11.1999 (the Scheme) For Encouraging Picture Hall Owners To Install Air Conditioners, Generators, Etc.

THE FACTS
2.The Petitioner (M/s. Nandan Talkies) Is A Registered Partnership Firm. It Runs A Picture Hall Known As 'Nandan Talkies' At Aligarh.

3.The Government Came Out With The Scheme To Encourage The Picture Hall Owners To Install Air Conditioners, Generators, Etc. Under The Scheme, The Entertainment Tax In Excess Of The Entertainment Tax Collected In The Previous Year Could Be Retained By The Picture Hll Owners Upto Half Of The Investment Amount Of The Air Conditioners, Generators, Etc. As Grant-in-aid For The Next Three Years.

4. The Petitioner Filed An Application On 2.6.2003 Before The District Magistrate, Aligarh (the DM) For Installing A Generator In The Picture Hall. It Was Duly Sanctioned On 6.6.2003.

5. The Generator Was Installed On 12.7.2003 In The Picture Hall At The Cost Of Rs. 5,04,668.20. The Petitioner Was Entitled For Adjustment For Half Of Its Cost, Namely, Rs. 2,40,088/- On Satisfying The Terms And Condition Of The Scheme.

6. After Receiving The Requisite Information, The DM Also Passed An Order On 26.7.2003/5.8.2003 Allowing Grant-in-aid In Terms Of The Scheme.

7. There Was Some Dispute Between The Parties Regarding Amount Of Entertainment Tax Retained By The Petitioner As Grant-in-aid. The DM Passed An Order On 11/12.1.2005 Directing It To Deposit An Amount Of Rs. 1,23,640/- Of Entertainment Tax, Said To Be Wrongly Retained By The Petitioner. Hence, The Present Petition.

POINT OF DETERMINATION
8. We Have Heard Sri MK Gupta, Counsel For The Petitioner And The Standing Counsel For The Respondents. The Following Points Arise For Determination :
(i) What Is Starting Point For Claiming Benefit Under The Scheme?
(ii) The Entertainment Tax Of Which Twelve Months Is To Be Taken For Considering The Excess Of Entertainment Tax That Could Be Retained By The Petitioner?
(iii) Whether The Order Dated 11.1.2005 Is Legal?

1st POINT: BENEFIT FROM DATE OF INSTALLATION
9.Paragraph 5(Ka) And 5(Kha) Of The Scheme Are As Follows :
5(d) Bl ;kstuk Ds VUrZxr Vuqnku Dk YkHk Nfox`gksa Esa Lacaf/kr Lqfo/kk Dh O;oLFkk Dj Ysus Dh FrfFk Ds Ckn Ls Gh VuqeU; Gksxk!
([k) MijksDr Vuqnku IzkIr Djus Gsrq BPNqd Nfox`g Lokeh] IzLrkfor FuekZ.k Dk;Z Dk FoLr`r Vkx.ku Ftykf/kdkjh Dks IzLrqr Djsxk! Ftykf/kdkjh }kjk Vkx.ku Lohd`r Fd;s Tkus Ds Ckn FuekZ.k Dk;Z IzkjEHk Fd;k Tk;sxk! Ikrz Izk:i&1 Esa Ftykf/kdkjh Dks IzLrqr Djds Vuqnku Lohd`r Djus Gsrq LkFk LkFk IzkFkZuk Dh Tk;sxh! Ftykf/kdkjh }kjk Izk:i&11 Esa Vuqnku Lohd`r Djus Ij] Vuqnku Ml FrfFk Ls Lohd`r Ekuk Tk;sxk] Ftl FrfFk Ls FuekZ.k Dk;Z Iw.kZ Gks X;k Fkk! Vuqnku Dk Dk Vkns'k Tkjh Djus Ds IwoZ Flusek Lokeh Ls Izk:i&11 Esa Vuqca/k Irz Hkjk;k Tk;sxk!

10. The Aforesaid Paragraph Indicates That The Benefit Is To Start From The Date Of The Installation/upgradation.

11. After The Installation Of The Generator, The Petitioner Had Filed An Application In Terms Of Paragraph 5(Kha) Of The Scheme. On This Application, An Order Was Passed As 26.7.2003/5.8.2003. In This Order, It Is Also Mentioned That The Petitioner Is Entitled To Benefit Of The Scheme From The Date Of Installation Though He Could Retain The Excess Of The Entertainment Tax Only After Deposit Of The Entertainment Tax Of The Previous Year.

12. The DM Had Passed An Order On 7.2.2004 Permitting The Petitioner To Retain The Excess Of Entertainment Tax From 1.2.2004. This Order Was Incorrect. In Fact, The Petitioner Was Entitled To Retain Excess Of Entertainment Tax For Three Years From The Date Of Installation, Namely 12.7.2003.

2nd POINT: 12 MONTHS PRECEDING UPGRADATION
13. Under The Scheme The Petitioner Was To Adjust Half Of The Investment In The Next Three Years From Entertainment Tax In Excess Of The Entertainment Tax From "chavi Grih Varsh' (picture Hall Year).

14. The Words 'chavi Grih Varsh' Is Not Defined In The Scheme. There Was Some Confusion About It. The Government Issued Two Other GOs Dated 17.11.2003 (the 2003 GO) And 3.8.2004 (the 2004 GO) Explaining The Same. In The 2003 G.O., It Was Mentioned That The Comparison For Excess Of Entertainment Tax May Be Done With The Financial Year.

15.The Benefit Under The Scheme Is To Be Given For Upgradation Of The Picture Hall. It Was Expected That Upgradation Would Increase The Sale Of Tickets And In Result Enhance The Collection Of The Entertainment Tax. It Is For This Reason That 50% Of The Investment Was To Be Adjusted From The Enhanced Entertainment Tax. If This Was The Reason Then Comparison With The Collection Of Entertainment Tax In The Financial Year Would Not Be Apt: The Comparison Should Be The Year (12 Months) Preceding The Upgradation. This Was Also So Clarified In The 2004 GO. The Relevant Part Of This GO Is As Follows :

Vr% IwoZ O"kZ Dk Vk'k; MPphdj Djk;s Tkus Ds Le; Ls Bhd Igys Ds 12 Eghus Gh Gksxsa ] Ftlls MPphdj.k Ds Dkj.k Nfox`gksa Ds Vf/kHkksx Nj Esa GqbZ O`f} Dk Lgh Vkdyu Fd;k Tk Lds RFkk Bl ;kstuk Dh Mikns;rk LFkkfir Gks Lds!

16.The 2004 GO Spells Out The Intention Of The Scheme And Clarifies That The Comparison Is To Be Done With The Collection Of Entertainment Tax Collected In The 12 Months Immediately Before The Installation/upgradation.

17.The Generator In The Petitioner's Case Was Installed On 12.7.2003 And The Comparison Is To Be Done With The Entertainment Tax Collected Between 12.7.2002 To 11.7.2003.

3rd POINT: NOT NECESSARY TO DECIDE
18.Under The Scheme Half Of The Investment Was To Be Adjusted In The Next Three Years Since Installation/ Upgradation. However, The Impugned Order Was Passed Before Expiry Of Three Years. The Three Year Period Is Over And Even If This Order Be Correct It Requires Modification As The Petitioner Would Be Entitled To Some Retention For The Period Remaining After The Order Was Passed.

19.Considering The Aforesaid Circumstances, It Would Be In The Interest Of Justice That The DM May Be Asked To Decide Again If Any Amount Is Still Due After Expiry Of Period Of Three Years And In Case It Is Due Then That Amount Be Recovered In Accordance With Law.

CONCLUSIONS
20. Our Conclusions Are As Follows :
(i) The Petitioner Is Entitled To The Benefit Of The Scheme From The Date Of Installation Of The Generator, Viz. 12.7.2003.
(ii) The Excess Of Entertainment Tax Is To Be Compared With The Entertainment Tax Collected During 12 Months Immediately Preceding The Date Of Up-gradation, Viz. 12.7.2003.
(iii) The Petitioner Could Retain The Excess Of Entertainment Tax As Grant-in-aid Only After The Entertainment Tax Of The 12 Months Preceding The Installation/ Upgradation Was Deposited.
(iv) The DM Should Again Decide If Any Amount Is Still Due After Expiry Of Period Of Three Years.

21. In View Of Our Conclusions, The Order Dated 11/12.1.2005 Is Quashed. The Petitioner May File An Application Along With A Certified Copy Of The Order In The Week Commencing 20.9.2010 Before The DM. In This Application, He Will Also Annex The Details Of The Entertainment Tax Collected And Deposited For Aforesaid Three Years. The DM May Thereafter Recalculate The Total Amount Of Benefit To Be Given To The Petitioner. In Case After Giving The Benefit Any Amount Still Remains To Be Due Against The Petitioner Then That May Be Recovered In Accordance To Law. With The Above Observation The Writ Petition Is Disposed Off.

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