Vineet Kothari, J.
1. Jarvis, a jurist of his times once said 'while taxes and death, both are inevitable, being taxed to death is not'.
2. The case present before this Court poses a question as to whether the entertainment tax collected by Panchayat Samiti under the Provisions of Rajasthan Entertainments (And Advertisement) Tax Act, 1957 (for short 'the Act' hereinafter) discharges the liability of the assessee under the Act and, therefore, State Government through its Commercial Taxes Department again cannot demand the same tax on the same entertainment and for the same period.
3. In fact, what should have been really a tug of war between the two departments of the State Government, its left and right arm, the right arm of the State Government, the Commercial Taxes Department without asking a question from the Panchayat Samiti, grabbed hold of the poor assessee and slapped upon him the demand of same entertainment tax, which it had already paid to the Panchayat Samiti.
4. The chequered history of the case shows that the respondent- assessee has already been embroiled in a lot of litigation on this account when one shrewd C.T.O. in 1981 -82 suddenly embarked upon the enquiry against the respondent-assessee and diving deep in the offices of Municipal Corporation, he came out with his find that the respondent-assessee's Cinema house located on Plot No. 1 in Suratgarh; which was allotted to him under a lease-deed by the Additional Collector-cum Secretary, Mandi Vikas Samiti, Hanumangarh in January, 1979 and the Cinema house thereon was constructed and started in the first week of October, 1981 was in fact situated in the municipal area and, therefore, panchayat Samiti had no jurisdiction to collect the entertainment tax from the said Cinema house.
5. The Vikas Adhikari of panchayat Samiti, Suratgarh had by a letter dated 16.9.1981 informed the assessee-Cinema house that its Cinema house was located at outside the municipal area and, therefore, the tax payable under the Act on commencement of exhibition of films would be payable to the Panchayat Samiti, Suratgarh and the petitioner was required to make a security deposit of Rs. 2,000/- and to execute an agreement under the Rules on stamp paper of Rs. 7/-. A certificate dated 4.2.1981 was also issued by the Executive Officer of the Suratgarh Municipality to the effect that the land in question had been auctioned by the Additional Collector-cum Secretary of Mandi Vikas Samiti, Hanumangarh and the same fell outside the jurisdiction of the municipality. Upon this, the petitioner deposited the said sum of Rs. 2,000/- by way of security and started payment of entertainment tax to the Panchayat Samiti, Suratgarh in the first instance for the period 4.10.1981 to 6.1.1982 amounting to Rs. 1,69,484.70.
6. When vide notice dated 28.12.1990, the C.T.O., Suratgarh required the petitioner to pay the tax assessed for the said period amounting to Rs. 1,76,665/-, the assessee approached this Court by way of S.B.C. Writ Petition No. 1087/1999, which stood transferred to the Rajasthan Taxation Tribunal on its constitution and the transferred case R.T.T. No. 212/1995 was allowed in favour of the assessee by judgment dated 27.8.1998 and against such judgment the writ petition filed by the State of Rajasthan and C.T.O. before the Division Bench of this Court under Article 227 of the Constitution of India was also dismissed by this Court on 24.9.1999, attaching finality to the said judgment of Rajasthan Tax Tribunal.
7. The litigation before this Court now by way of this batch of revision petitions filed by the Commercial Taxes Officer is for the period subsequent to the aforesaid period up to 6.1.1982 on account of different assessments for different periods of a quarter or monthly basis. Against the order of the Tax Board, Ajmer, which following the view of the Rajasthan Tax Tribunal, held in favour of the assessee that once the tax in question had been paid to the Panchayat Samiti as per Section 19-A of the Act, the assessee could not be required to pay again the same tax to the C.T.O. The Tax Board upheld the order of the Dy. Commissioner (Appeals), who also had allowed the first appeal of the assessee on similar grounds.
8. Shri Sangeet Lodha, learned Counsel for the Revenue submitted that for the period after 6.1.1982, the position became different inasmuch as the earlier certificate issued to the assessee on 4.2.1982 by the Executive Officer, Suratgarh Municipality was cancelled by the Executive Officer of Suratgarh Municipality on 2.12.1981 in pursuance of the correspondence of C.T.O. that the Cinema house of the assessee was located within the municipal limits but, the plot in question was sold by the Additional Collector-cum-Secretary, Mandi Vikas Samiti, Hanumangarh as the municipality did not have the powers to sell the land in the Mandi, area. It is only on 2.12.1981 that the C.T.O. was informed by the Additional Collector-cum-Secretary, Mandi Vikas Samiti, Hanumangarh certifying that the Cinema house in question was located in the municipal limits of Suratgarh and the tax under the Act was payable to the State Government instead of to the Panchayat Samiti and cancelling the certificate which was issued to the contrary earlier. Learned Counsel, therefore, submits that for the period after 6.1.1982, the assessee was not justified in continuing to deposit the entertainment tax with the Panchayat Samiti Suratgarh up to October, 1986 and, therefore, the learned Assessing Authority was right in raising the demand of tax against the assessee for the said period after 6.1.1982 and the Tax Board, therefore, has committed an error in striking down the said demand and thus the present revision petitions filed by the Revenue deserve to be allowed.
9. Per contra, Shri Baljinder Singh Sandhu, learned Counsel appearing for the respondent-assessee submits that in view of the on going confusion during the said period as to whether the Cinema house of the assessee was located in block area of Panchayat Samiti, Suratgarh or within the municipal area of Suratgarh Municipality, the assessee bona fide paid the tax under the Act to the Panchayat Samiti and when the C.T.O. raised the demand of entertainment tax for the same period, it had to file suit for injunction also against the said demand of C.T.O. and also persue his litigation before the appellate authorities under the Act, which ultimately resulted in his favour by allowing all the appeals by the First Appellate Authority as well as the Tax Board. He submits that temporary injunction was granted in favour of respondent-assessee on 11.5.1982 which was first upheld by Appellate Court, but after remand by this Court in Revision Petition, only on 21.3.1997, the learned Appellate Court while again issuing injunction against C.T.O. for past recovery only vacated injunction against future recovery. This injunction would cover the period in question upto October, 1986 and he says that after about 16 years, the C.T.O. could not be allowed to raised demand for the same period in 1997. He further says that there was never any mala fide intention of assessee in depositing the tax with Panchayat Samiti and for the fight between the two local bodies, the assessee cannot be blamed or punished. He says that rates of tax for both were same and according to him as against demand of C.T.O. of Rs. 20,35,955/-, assessee had paid Rs. 20,41,953/- to the Panchayat Samiti as tax for the said period. In view of this position taken by him and litigation pursued by assessee, he continued to deposit the said tax with the Panchayat Samiti, who jolly well continued to collect such tax from the assessee. Not only that, the assessee submits, the Panchayat Samiti insisted upon the Assessee during this period also to deposit the said entertainment tax with it. Torn between the two, the assessee continued to so deposit the said tax with the Panchayat Samiti in discharge of its obligation under the Act.
10. The judgment of Rajasthan Tax Tribunal was also in his favour after the suit for injunction was withdrawn by him and now he submits that the liability to pay entertainment tax for the said period even after 6.1.1982 upto October, 1986 stood discharged by him by payment of said tax to the Panchayat Samiti, Suratgarh and no such repetitive tax could be demanded by the C.T.O. as it would amount to double taxation and the same is not permissible in law. He further submits that judgment of R.T.T. became final with the rejection of writ petition filed by Revenue by the Division Bench of this Court on 24.9.1999 and, therefore, it is not open for Revenue tore-agitate the said issue. Therefore, the Tax Board was justified in holding in its favour that such demand could not be made by the C.T.O. Therefore, he submits the revision petitions filed by the Revenue deserve to be dismissed.
11. Having heard the learned Counsels at length and after giving my careful consideration to the rival submissions, the provisions of law and various judgments cited at Bar, this Court is of the considered view that the revision petitions filed by the Revenue deserve to fail. The reasons are as follows.
12. The scheme of the Rajasthan Entertainments (And Advertisement) Tax Act, 1957 is like this. The said Act was enacted in 1957 to impose a tax in respect of admission to entertainments and advertisements in the State of Rajasthan and as given in the preamble of the said Act, the avowed object of the said Act was to provide for the levy by the State Government of a tax in respect of admission to Theaters, Cinemas and other places of public entertainments in the State of Rajasthan and for the payment of compensation to the local authorities levying similar tax.
13. Section 2 of the Act provides that the local authorities levying similar tax shall cease to levy such tax from such commencement, notwithstanding that the laws under which they are levying the tax, are unlike the enactments specified in the first Schedule, not suitably amended. Section 3 of the Act defines various terms used in the Act. Section 4 is the charging provision, which provides for levy of tax on payment for admission to an entertainment. Section 4-A deals with levy of advertisement tax, with which we are not concerned in the present case. Section 5 deals with manner of payment of tax, which provides that levy of entertainment tax in respect of each person admitted on payment to an entertainment and such entertainment tax shall be due and recoverable from the proprietor, who is also under an obligation to file proper returns. Section 5-B deals with assessment and Section 5-C with re-assessment of tax. Section 6 provides that no person shall be admitted to an entertainment without payment of entertainment tax. Section 7 provides for non-liability to tax on payments for admission to certain entertainment namely, the exemption provision. Section 8 provides for refund of tax in certain cases. Section 9 deals with manner of recovery of tax, which provides that the tax may be recovered as an arrear of land revenue. Section 9-A provides for levy of interest on failure to pay tax or penalty. Section 10 deals with offences and penalty. Section 10-A deals with penalty for non-payment of tax. Section 12 deals with renewal, revocation and suspension of licenses for entertainments. Section 12 deals with power to compound offences. Section 13 deals with entry and inspection. Section 13-A, 13-B and 13-C provide for first and second appeal and revision before this Court. Section 13-D empowers Commissioner to revise orders and Section 13-E deals with rectification of apparent errors. Section 14, which is of some relevance here provides for payment of subsidies to local authorities by way of compensation. It provides that from the proceeds of the tax collected under this Act every year, there shall be paid to each local authority which was in receipt of an income from a tax levied by it in respect of admission to entertainment under any enactment prior to coming into force of this Act, shall be paid such sum as may be determined by the State Government, which shall not be less than a sum equivalent to the average net annual income derived by such local authority during past three years from the tax so levied. By a notification under this Section 14, such sum was determined to be double of the average net annual income derived by such local authorities during these three years. Sections 15 deals with bar of certain proceedings against officers or servants of the State Government for the acts done in good faith. Section 16 deals with limitation for certain suits and prosecutions. Similarly, Section 17 deals with proceedings against officers and servants of local authorities and Section 18 deals with powers to make rules conferred on the State Government. Section 19 deals with delegation of certain powers of the State Government. Section 20 deals with repeal of certain laws and Section 21, the last provision, deals with interpretation.
14. In between Section 19 and Section 20 is the most pertinent provision in the present case i.e., Section 19-A which is reproduced hereunder in extenso:-
Section 19-A Panchayat Samitis to collect tax under the Act. CD Notwithstanding anything in this Act, every Panchayat Samiti constituted for a block under the Rajasthan Panchayat Samitis and Zila Parishads Act, 1959, shall as from a date notified by the State Government in this behalf (hereinafter referred to as the appointed date), collect within the block, the tax under this Act and for the purpose of such
a) all the provisions of this Act shall apply and shall be deemed to have come into force in the block on and from the appointed day
Provided that Sections 14, 17 and 19 of this Act shall not so apply.
b) the powers exercisable under any provision of this Act by a prescribed authority shall be exercised in the like circumstances by the Panchayat Samiti.
c) the powers exercisable there under by the State Government, except those mentioned in Sub-section (1) of Section 4, Sub-section (2) of Section 7 and Section 18 shall be exercised in like circumstances by the Panchayat Samiti.
d) in Sections 15 and 16 by reference to the State Government shall be construed as including references to the Panchayat Samiti, and
e) reference to officers and servants of the State Government shall be construed as including references to officers and servants of the Panchayat Samiti.
2) As from the appointed date,-
a) no sum shall be payable by the State Government under Section 14 to any local authority within the block, and
b) the expenditure incurred in the collection of the taxes shall be met by the Panchayat Samiti from out of its fund the proceeds arising there from shall be credited to that fund.
15. It would also be relevant to reproduce the notification issued under the said provision Section 19-A appointing the 1.12.1956 as the appointed date from which the local authorities should start collecting entertainment tax within the block area and the provisions of the Act were to apply mutatis mutandis to such local authorities. The notification is as follows:-
Entertainment Tax-Collection by panchayat Samitis from 1.12.1959.
In exercise of the powers conferred by Section 19-A of the Rajasthan Entertainments Tax Act, 1957 (Raj. Act No. 24 of 1957), the State Government hereby appoints 1.12.1956 as the date from which the Panchayat Samitis shall collect entertainment tax within their respective jurisdiction.
Noti No. F 9(10) E&T; 59 dated 3.11.1959, Pub. in Raj. Gaz. Pt. IV-C dated 31.11.1959)
16. Now, the most important and crucial question which arises for consideration is as to whether if in the same enactment, two collecting agencies have been empowered by the State Government to collect the same tax levied under the same Act though, for different areas, the panchayat Samitis for block areas and the State Government through its Commercial Taxes Department for the other areas, how the liability of the assessee is discharged and what is the effect if a collection of tax under the Act is made by one of the agencies, which is not really authorised as per the area defining its jurisdiction. In other words, will it be or will it not be double taxation if the tax levied under the same enactment is paid to one collecting agency is again demanded by the second collecting agency by de novo assessments.
17. Justice Krishna Iyer in his inimitable style, in Avinder Singh v. State of Punjab : [1979]1SCR845 while dealing with a case of levy of tax on Indian made Foreign Liquor by punjab Municipal Corporation under Section 90 of that Act held that there is nothing in Article 265 from which one can spin out the constitutional vice called double taxation. If on the same subject matter the legislature chooses to levy tax twice over there is no inherent invalidity in the fiscal adventure save where other prohibitions exist. The powers under Section 90 of the Punjab Municipal Corporation Act permitted levy of tax by the Municipal Corporation only if the tax is new and not already imposed. The Court in the ultimate analysis upheld the levy of tax imposed by the Municipal Corporation on IMFL at flat rate of Rs. 1/- per bottle on the ground that what was forbidden by Section 90(5) of the Act was that the Municipality body shall not repeat the same tax if it has imposed that tax earlier under that Act. The injunction is plain and is confined to repetition of those taxes which the Municipality as already imposed. If the Corporation has not imposed the tax already imposed, the embargo is absent.
18. The relevant extract from Para 7 of the said judgment deserves to be reproduced hereunder:-
That section primarily empowers Municipal Corporations to levy taxes. Section 90(1) specifies a number of items many of which are taxed also at State level, e.g. lands, vehicles. Section 90(2) is so widely worded that many taxes covered by it would already have been occupied filed at the State or even Central level. The municipal body may not have any index of taxes already imposed by other bodies and they are many. Section 90 would then be a precarious power, often an exercise is futility and frequently a litigative trap. No. That is not the meaning of the prohibition 'not already imposed'. The Government exercised the power of the corporation under Section 90(5) and cannot enter what is forbidden ground for the latter. And what is forbidden is that the municipal body shall not repeat the same tax, if it has imposed that tax earlier under that Act. The injunction is plain and is confined to repetition of those taxes which the municipality has already imposed. If the Corporation has not already imposed the tax proposed, the embargo is absent. It is of no moment that some other body, including the State Legislature, has already entered the field. The question is: has the municipal committee or corporation, under this Act, already exacted a similar tax? If it has, the second exercise is anathema. Nobody has a case that the corporation has earlier taxed foreign liquor under this Act. Therefore, the submission has no substance and we reject it.
19. From the perusal of the said law laid down by the Hon'ble Supreme Court, the ratio for deciding the applicability of prohibition of double taxation is as to whether the authorised agency has already exacted a similar tax under the Act already and if so, the second exercise is prohibited and it would so amount to forbidden double taxation.
20. In Radha Kishan Rathi v. Additional Collector, Durg and Ors. : [1995]3SCR510 , the Hon'ble Supreme Court seized with a controversy as to whether the Janpada Panchayat can impose theatre tax on Cinema, Theatre situated within the territorial limits of local municipality in which municipality also imposed Cinema tax, the Court held that the same subject matter can be covered by the tax nets imposed by different competent taxing authorities and there will be no double taxation involved in such case. The relevant part of Para 5 of the said judgment is reproduced hereunder:-
It is obvious that a cinema theatre situated within the territorial limits of local municipality or a corporation can be taxed by the concerned municipality in exercise of its powers under the relevant Municipal Act. But if, the same theatre is also situated within a block duly constituted under the Panchayat Act it would fall within the territorial limits of the concerned Janapad Panchayat constituted for that block as laid down by Section 103 read with Section 104 of the Panchayats Act. Once that happens, the concerned Janapad Panchayat would obviously be entitled to invoke its taxation powers under Section 157 for the area within its jurisdiction and if a theatre is situated within that area then obviously Section 157 would get attracted for imposing the twin types of taxes mentioned by Section 157 which are permissible to be imposed by the Janapad Panchayat. It is now well settled that the same subject matter can be covered by taxation nets imposed by different competent taxing authorities and there will be no double taxation involved in such case. We may refer on this connection to the decision of this Court in the case of Sri Krishna Das v. Town Area Committee, Chirgaon : [1990]183ITR401(SC) .
21. The said case obtaining before the Hon'ble Supreme Court is converse on facts obtaining before this Court in the present matter. In the above case two different legislative bodies under the two different enactments levied two different taxes, one Cinema tax by municipality and another Theatre tax by Janpada Panchayat and, therefore, the Court held that it did not amount to double taxation and same subject matter can be subjected to two different taxes by two different bodies. Quite opposite to that, in the case in hand, under the same enactment i.e., RajastHan Entertainment (And Advertisement) Tax Act, 1957, two different agencies for two different areas have been created for collection of tax under the same Act under Section 19-A, the Panchayat Samitis for the block areas and the State Government for other areas. Obviously, the Cinema house of the respondents-assessee could exist only in one of the areas either Panchayat Samiti or in the municipal area. Even assuming that it fell in the municipal area during the disputed period in question, the question which still looms large Is that if tax under the same enactment has been paid by the assessee to the Panchayat Samiti, is the obligation of the assessee under the Act not discharged? The answer in the considered opinion of this Court has to be in affirmative and it has to be held that as far as obligation of assessee for payment of tax under the Act is concerned that stood completely discharged with the payment of tax to the Panchayat Samiti. Article 265 of the Constitution of India not only prohibits levy but, collection of tax also except, by authority of law. But in the present case, the collection of tax by the Panchayat Samiti from the respondent-assessee is not without authority of law as such. Section 19-A of the Act authorises Panchayat Samitis to do so. Merely because, there was dispute as to whether the Cinema house of the respondent-assessee fell within the municipal limits or Panchayat block area, it cannot be said that collection of tax by Panchayat Samiti was without authority of law.
22. Even, if the assessee can be said to be at some mistake in paying the tax to the Panchayat Samiti even after the clarification issued by the municipal authorities to the C.T.O., a copy of which was endorsed to the respondent-assessee also, the Panchayat Samiti was also equally at fault. The said clarification by the Executive Officer of Municipality, Suratgarh on 2.12.1981 is also issued without any concurrence or consultation with the Panchayat Samiti, nor any such statutory notification defining and delimiting the said area precisely is on record. Had Panchayat Samiti shut down its door to the respondent-assessee, he would have naturally paid the tax to the State Government during the contemporary period itself. Be that as It may, the assessee having paid up the tax to the Panchayat Samiti and the latter having accepted the same, the C.T.O. certainly cannot demand the same tax again for the same period from the assessee under the same enactment for the same period as the levy and collection of tax under the same Act is once and not twicely permitted as per the charging provision of this Act. Mere acquiescence of an assessee in an Improper collection of tax is not a ground to deny the relief to the assessee. Refer to Constitution Bench decision in Amalgamated Coalfields Ltd. and Ors. v. Janapada Sabha, Chhindwara, : [1962]1SCR1 .
23. Learned Counsel for the Revenue also urged towards ends of his argument that if this Court comes to the conclusion that the assessee Is not liable to be taxed again in the hands of C.T.O. since, it has paid the tax to the Panchayat Samiti for the period in question then, a direction may be given to the Panchayat Samiti to make over such collection of tax from the assessee to the C.T.O.
24. This Court is unable to accept this submission for two reasons. Firstly, in the present revision petitions, the Panchayat Samiti is not before this Court and, therefore, no such direction can be given against it without affording an opportunity of hearing to the Panchayat Samiti, Secondly, it is also not on record as to whether the Panchayat Samtti, which is entitled to collect entertainment tax under Section 19-A of the Act as such and utilize the same for its local development work after meeting the expenditure for collection of such taxes, which might have already spent such collection of taxes from the assessee also should be now compelled to cough up such collection in favour of another department of the same State Government. It would be inappropriate to convert what could have been an administrative tussle between the two wings of the same State Government into a legal battle in a Court of law and then to issue directions to one wing and that too unheard. It could also be contrary to the very spirit of Preamble and Section 14 of the Act to direct Panchayat Samtti to make over such collection of tax to the Commercial Taxes Department. Therefore, this Court is not inclined to issue any such directions.
25. Consequently, the revision petitions filed by the Revenue against the order of the Tax Board are liable to be dismissed and accordingly all the fifty one Revision Petition as per the Schedule annexed raising the same issue are dismissed. Costs made easy.