K. S. SHRIVASTAV, J.

( 1 ) HEARD the learned Counsel for the petitioner and learned Special government Pleader for Commercial Taxes.

( 2 ) THE petitioner is an exhibitor of films in Uppal. He was paying entertainment taxes under Section 5 of the Andhra Pradesh Entertainments tax Act, 1938 (sic. 1939) (in short APET Act ). After obtaining permit in Form no. IV, the prescribed authority has granted permission for making weekly payment of Rs. 4883/- for the financial year 1987-88. The Government of andhra Pradesh vide G. O. Ms. No. 233, dated 19-2-1987, upgraded the Uppal gram Panchayat into a second grade Municipality. The entertainment tax can be varied under Section 5 (6) of the APET Act, inter alia when the local area in respect of which permission is granted, is upgraded.

( 3 ) ON 2-11-1987, the Entertainment Tax Officer (in short ETO) has issued a notice calling upon the petitioner to file objections for enhancement in rate of tax for the period from 1-2-1987 to 6-11-1987 because the concerned area was upgraded as a second grade municipality. On 24-11-1987, the ETO varied the tax in proceedings Rc. No. APET/87-88 and assessed the entertainment tax at Rs. 96,802/ -. The final order dated 24-11-1987 was served on the petitioner by affixing it on the premises on the same day. The petitioner of late obtained a copy of the final order on 16-5-1991 and preferred an appeal before the Appellate Deputy Commissioner (ET), Secunderabad Division, hyderabad. The appeal bearing No. 56/91-92 was partly allowed on 28-3-1995. The appellate authority found that the petitioner was not liable to pay tax amounting to Rs. 23,888/- for the period from 1-2-1987 to 31-3-1987. But, he was liable to pay the difference of tax for the period from 1-4-1987 to 5-11-1987 amounting to Rs. 72,914/-, because notice issued on 2-11-1987 was served on the appellant on 8-11-1987 i. e. during the period of option which was from 1-4-1987 to 31-3-1988.

( 4 ) FEELING aggrieved by the impugned order, the petitioner has preferred this revision petition mainly on the ground that the final order was not served in accordance with Rule 52 of the APET Rules, because final order cannot be directly served by affixture without the satisfaction of the ETO, that service of notice was not possible as per the procedure of service contemplated by clauses (a) to (c) of the relavent Rules vide M/s. Sri Venkateswara Talkies os. Appellate Deputy Commissioner. The final order should be deemed to have been served on 16-5-1991, i. e. after a period of three years and five months. Therefore, in the absence of explanation for the delay, it should be presumed that the final order was passed after the period of option, and therefore, it is illegal.

( 5 ) IN the case of Swamy Theatre vs. Deputy Commercial Tax Officer, a Division bench of this Court held, that the power to vary the amount of tax under subsection (6) of Section 5 of the APET Act, is restricted to the period of option, i. e. the period during which the power to vary the amount of tax is the period of option. Sub-section (5) of Section 5 of the APET Act, enjoins that the period (sic. option) permitted under the Section shall continue to be in force till the end of the financial year in which such option is permitted. This means that the period of the option in the case on hand was from 1-4-1987 to 31-3-1988. In Swamy Theatre vs. Deputy Commercial Tax Officer, a notice by the Deputy commercial Tax Officer was issued on 7-5-1988, i. e. during the period of option which was from 1-4-1988 to 31-3-1989, and therefore, the amount of tax varied for that period of option i. e. from 1-4-1988 to 31-3-1989 was found to be legal and recoverable.

( 6 ) THERE appears to be no provision for noticing the assessee before varying the amount of tax. However, a notice was issued for the proposed tax on 2-11-1987 and it was served on the petitioner on 8-11-1987. But, the petitioner neither appeared nor submitted any objections to the proposed tax. The

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