Judgment · High Court

Rule. Rule made returnable forthwith. With consent of the parties, this Petition is taken up for final hearing.

The present petitioner impugns the action of the respondents in attaching/sale of his property and further seeks directions to make assessment of the entertainment duty.

The present petitioner is carrying on the business of cable network. The respondent no.4-Tahsildar issued notice to the petitioner and demanded an amount of Rs. 9,98,456/-. Thereafter, the respondents closed the control room and sealed the same. On

16.03.2009, the Sub-Divisional Officer issued form of proclamation and notice of forfeiture of the house property of the petitioner. Thereafter, on 24.03.2009, the Tahsildar issued an order of attachment of the immovable property. The petitioner made deposit of some part amount, still the Sub-Divisional Officer issued proclamation and notice of sale of attached property and the auction was also kept. It was declared that the respondent no.5 is successful bidder. Therefore, the Division Bench of this Court on 16th February, 2010 granted status-quo with regard to the suit property. As such, the further proceedings of sale could not be held. 3 wp1001.10

The learned counsel for the petitioner contends that the whole exercise of issuing demand notice, attaching and putting the said property of the petitioner for sale, so also closing the control room by putting seal over it, is illegal as there is no assessment order passed by any authority fastening the liability on the petitioner, though the petitioner submitted the returns under Section 4B of the Bombay Entertainments Duty Act, 1923.

Shri. Choudhary, the learned Additional Government Pleader contends that the petitioner is defaulter. Time to time demand notices were issued to him and still he failed to deposit the amount. His licence was cancelled and still he was running the business. The authorities have rightly taken action and closed the control room. Inspite of this, the petitioner is running the said business. It is within the competence of the authorities to proceed with the attachment of the property and sale the same in the event of non-payment of the duty. The learned Counsel for the respondent no.5 also supports the action of the respondent authorities.

From the record, it appears that the petitioner has submitted the returns with the Authorities as required under the 4 wp1001.10 statute. As per section 4B of the Bombay Entertainments Duty Act, 1923, the assessment is required to be made in pursuance to the said returns by the Authorities and after that, the assessment order is to be passed. Thereafter, the further action can be taken. The learned Additional Government Pleader has placed on record the communication received to the office of the Government Pleader that in the present matter, the assessment order is not passed. In absence of any assessment order, the liability as against the petitioner can not be said to be crystallized. In such circumstances, the respondent authorities could not have resorted to the provisions of the Land Revenue Code for recovering the duty as arrears of the land revenue. The said procedure has to be preceded by the assessment of the duty. In absence of the same, the action initiated by the respondents can not be sustained.

In the light of the above, the impugned notices are quashed and set aside. The Rule is made absolute in terms of prayer clauses `B' and `D'. However, as far as the cancellation of licence is concerned, the petitioner is at liberty to take appropriate steps before the appropriate Authority in respect of the same. The respondents are at liberty to make assessment of the returns as contemplated under Section 4B of the Bombay Entertainments Duty Act, 1923 by giving an opportunity of hearing to the petitioner. 5 wp1001.10 The said exercise as contemplated under Section 4B of the Bombay Entertainments Duty Act be done within a period of three months. Till the assessment is done by the respondents, the petitioner shall not encumber his property i.e. the property which was under seal and the property that was attached nor shall deal with the same in whatsoever manner. The Rule is accordingly made absolute in the above terms, however, with no order as to costs.

The parties to act upon the copy of this order duly authenticated by the Court Shirestedar. ga s/wp 1001.11 Sd/- [S.V. GANGAPURWALA] JUDGE