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Judgment
These two writ petitions are connected and can be disposed of together.
Heard the learned Government Pleader: The facts in the cases being similar it will be sufficient to refer to the facts in W.P, No. 10253/90.
The petitioner is a threatre located in Hyderabad city, on 10-4-90 two shows in the morning and the matinee could not be held due to Telangana Bundh in the twjn cities. The petitioner therefore thought of taking advantage of the provisions of S. 19,A of the A.P. Entertainment Tax Act (hereinafter referred to as the Act) and the notifications issued by the Government in G.O-Ms. "No. 752 Revenue dt. 4-7-85. Accordingly, the petitioner submitted an application for exemption from payment of entertainment tax in respect of the said two shows. The application was submitted to the Entertainment Tax Officer on 11-4-90. Inasmuch as under the G.O. the said application has to be accompanied by a certificate issued by the Commissioner of Police, the petitioner applied to the latter authority on 11-4-1990, On account of delay in the office of the Commissioner of Police the said certificate could not be made ready till 10-5-1990. It was actually received by the petitioner on 14-5-1990. On the next day, i.e., 15-5-90, the petitioner submitted the said certificate before the Entertainment Tax Officer. The said officer however rejected the application for exemption by an order dt. 16-5-90 holding that the petitioner failed to enclose the closure certificate issued by the Commissioner of Police along with his application within 30 days as mentioned in the above said G.O. It was further held that without the said certificate the application for exemption of entertainment Tax and show tax would not be forwarded to the Commissioner of Commercial Taxes. Thereafter the petitioner made a representation on 19-5-90 stating that the delay in obtaining the certificate from the Commissioner of Police was not attributable to the petitioner and that the petitioner therefore cannot be held responsible in any manner for the delay in filing the certificate. There-after the Entertainment Tax Officer passed further order on 25-6-90 reiterating the reasons mentioned in the earlier order dt. 16-5-90. He also further observed that the department of Commercial Taxes was in no way responsible for the delay caused in the office of the Commissioner of Police. Questioning this order, the writ petitioner has filed two present writ petitions in respect of two theatres.
S. 19-A of the Act provides that the State Government may by notification in the A.P. Gazette and for reasons to be specified therein exempt, whether prospectively or retrospectively any proprietor or owners of theaters from the payment of the amount of tax-referred to in Sec. 5(1) or any part thereof subject to such conditions and restrictions as they may deem fit to impose and may in like manner vary or cancel such notifications. Subsequent to the provision the State Government issued the notification above referred to in G.O.Ms. 752 dt. 4-7-85 permitting grant of exemption in the cases of (1) natural calamities (2) break down in law and order (3) break down in supply of energy (4) social customs (5) national calamity and (6) cancellation of licence. Para (3) of the said G.O. explains the meaning attributable to the above said words. Para (5) states that the application to be filed by the affected parties must be accompanied by a certificate issued by the licencing authority to the effect that one of the circumstances as detailed in para (3) existed in a particular local area. Para (6) states that the application shall be submitted within 30 days from the date of the close of the week in respect of which the application for relief under S. 10-A for the shows not held in that particular week is requested for. Paragraph (8) refers to the procedure to be followed in regard to the consideration and recommendation of the application for grant of exemption from payment of amount of tax payable per week under S. 5 of the Act. Sub-el. (1) of Cl. 8 states that the entertainment Tax Officer shall examine the application, submitted within the stipulated period verify the correctness, completeness and propriety of the claim for relief, forward the application along with his specific recommendations to the Commercial Tax Officer within a week from the date of receipt of the application. Subsequent sub-clauses permit the Commercial Tax Officer in his turn to examine the application and send his recommendations to the Deputy Commissioner and the Deputy Commissioner to send his recommendations to the Commissioner and the Commissioner to the Government.
In the present case it is not in dispute that the petitioner submitted the application within 30 days from the date of the close of the week in respect of which the application for relief is filed as provided under Cl. (6) of the G.O. The only defect was that it was not accompanied by the certificate of the Commissioner of Police with regard to the bundh on the day on which the theatres were closed. We are of the view that the application if filed within the time prescribed in Cl. (6) cannot be rejected on the ground that it was not accompanied by the certificate of the Commissioner of Police and on the ground that by the date certificate was filed, the period of 30 days had elapsed.
From the facts mentioned above, it is clear that the petitioner had approached the Commissioner of Police immediately on 11 -4-1990 and the delay is not attributable to the petitioner. The petitioner had done what all could be expected from him for due com- pliance with the procedure indicated in the G.O. The Entertainment Tax Officer was therefore not right in straightway rejecting the application on the ground that the certificate was not filed within 30 days mentioned in the G.O. as that is not the requirement of the G.O.
A question more or less similar to the one before us came up before the Supreme Court in Krishna Kumar Mediratta Vs. Phulchand Agarwala and Others, . The matter arose under the Mines and Minerals (Regulation and Development) Act, 1957. An application was made for grant of prospecting licence and certain amount of fee was paid along with the application. The fee was however less than what was required under the relevant rules. It was held that the application could not be treated as void and that the fee could have been received subsequently and the application treated as a valid application. Rule 9(2) of the Mineral Concession Rules, 1960 provided that every application shall be accompanied by (la) a fee calculated in accordance with the provisions of Schedule II. The Supreme Court observed that the use of the word ''shall'' imposing a duty was not conclusive on the question whether the duty imposed was mandatory or directory. It is not the breach of every mandatory duty in performing a prescribed act that could make an action totally ineffective or void ab initio. The filing of application was one thing and the completion of some annexed duty, which is legally separable, is another unless a statute or a rule provided otherwise. The Supreme Court observed that a right and reasonable procedure looks to substance rather than form of a transaction in order to determine its nature. If the application was to be treated as a valid application for non-compliance with any particular technical requirement, the statute and the rules would have themselves said so.
Applying the aforesaid decision we hold that the Entertainment Tax Officer should not have rejected the application in limini on the ground that the certificate of the Commissioner of Police was not filed within 30 days as mentioned above. For the aforesaid reasons, the impugned orders dt. 16-5-90 and 25-6-90 are quashed and there will be a direction to the Entertainment Tax Officer to" forward the application of the petitioner to the Commercial Tax Officer together with his recommendations treating the application as valid and also treating that the filing of the certificate subsequently not in any manner invalid. The petitioner is permitted to re-submit the original application which has since been returned to it, to the Entertainment Tax Officer with a view to enable the Entertainment Tax Officer to take further action in the light of the directions given above.
The writ petitions are allowed as stated above. No costs. Advocate''s fee Rs. 150/- in each.
Petitions allowed.