Tarik Ali Khan vs State of U.P. and others

Rajesh Kumar, J.—By means of the present writ petition, petitioner is challenging the order dated 12.9.2008 passed by the State Government in appeal filed by the petitioner under section 12 (2) of U.P. Entertainment and Betting Act, 1979 (hereinafter referred to as "Act") against the order of the District Magistrate, Bareilly dated 12.10.2006.

Petitioner is running cable network under the name and style, Saif Cable T.V. Network, Bareilly. Petitioner claimed that the business of cable network was started in the month of December, 2004 with 81 connections. However, the case of the respondent is that in the survey made in the month of July, 2003, 115 connections were found and it was found that the petitioner was carrying on the business since July, 2003. It is the case of the District Magistrate that after the survey, the petitioner was issued detailed show cause notice on 24.12.2004 stating therein that at the time of survey made in the July, 2003, 115 connections were found while the tax being deposited only for 81 connections. It has also been informed that the business is being carried on since July, 2003. No reply was filed to this notice. Further the notices were issued on 3.1.2005, 11.3.2005, 18.3.2006 and 8.9.2006 but the petitioner neither filed any reply nor appeared in the proceedings, therefore, ex parte order was passed on 12.10.2006 demanding a sum of Rs. 1,13,400/ alongwith interest for the period of July, 2003 to August, 2006. Being aggrieved by the order, petitioner filed appeal under section 12 (2) of the Act before the State Government, which has been dismissed vide order dated 12.9.2008.

Heard Sri R.D. Yadav, learned Counsel for the petitioner and learned Standing Counsel.

Learned Counsel for the petitioner submitted that the petitioner started the business from December, 2004 and not from July, 2003 and, therefore, the assessment made from July, 2003 on the basis of the alleged survey made in the month of July, 2003 is wholly unjustified. He further submitted that the survey was ex parte and the copy of the survey report has neither been provided nor it has been confronted to the petitioner. Therefore, the adverse inference drawn in wholly unjustified.

Learned Standing Counsel submitted that on the basis of the survey made in the month of July, 2003, the petitioner was brought on record. At the time of survey, it was found that the petitioner was running the cable network in the name and style, Saif Cable T.V. Network, Bareilly. The detailed showcause notice was issued on 24.12.2004, which has been admittedly received by the petitioner, which is apparent from the acknowledgment slip annexed as C.A. 1 to the counteraffidavit. Further a showcause notice was issued on 11.3.2005, which has been received by the petitioner on 28.3.2005, which is apparent from C.A.2. The copies of the notices are also annexed as part of C.A.1 and C.A.2. In the notice dated 24.12.2004 it was stated that upto June, 2003 on the same place, Mishra Cable Network, proprietor Sri Rajendra Kumar Mishra was carrying on the business and he had deposited the tax. Sri Mishra vide letters dated 14.10.2004 and 7.11.2003 has informed that the petitioner isrunning the cable network from July, 2003. Further it has been informed that at the time of survey, 115 connections @ Rs. 25/ per month were found. Admittedly, after the receipt of the aforesaid two notices no reply has been filed. Petitioner has not disputed the averments made in the two notices. Learned Standing Counsel states that apart from the aforesaid two notices as per the record, the notices dated 3.1.2005, 18.3.2006 and 8.9.2006 were also issued but no reply of such notices were filed. In these circumstances, District Magistrate, Bareilly had no option except to proceed ex parte. District Magistrate, Bareilly, accordingly, on the basis of the material available on record passed the order dated 12.10.2006 and raised the demand for the period from July, 2003 to August, 2006, which is wholly justified and the appeal against the said order has also rightly been dismissed.

Having heard learned Counsel for the parties, I have perused the impugned orders and the material available on record.

It is not in dispute that detailed showcause notices dated 24.12.2004 and 11.3.2005 were received by the petitioner. The copies of the showcause notice and the acknowledgment slips are annexed as C.A.1 and C.A.2. Petitioner in paragraph No. 8 of the writ petition also admitted the receipt of the showcause notice dated 11.3.2005 in the month of March, 2005 and in para 3 of the affidavit, which is Annexure5 to the writ petition, petitioner has admitted the receipt of notice dated 24.12.2004. Admittedly, the petitioner has not filed any reply to the aforesaid two showcause notices. In the two notices, it was categorically stated that the petitioner was running the cable network from July, 2003 with 115 connections and charging Rs. 125/ per month. Petitioner has not filed any reply to the notices. Petitioner has never asked the District Magistrate, Bareilly to supply the copy of the survey report and the averments made in the notices have also not been disputed. Therefore, after passing the order of the District Magistrate, Bareilly, the dispute raised by the petitioner that the copy of the survey report has not been provided and the averments made in the survey report about the number of connections is not correct, has no substance. It may be mentioned here that the appellate order also shows that after the issue of showcause notice, petitioner started depositing the tax on the basis of the 115 connections without raising any dispute. This action of the petitioner also shows that the petitioner has preferred not to dispute the case of the department. In this view of the matter, I do not see any error in the order of the appellate order as well as the order passed by the District Magistrate, Bareilly.

In the result, petition is devoid of any merit and is accordingly, dismissed.