B.R. Gavai, J.

1. 1. By way of present petition, the petitioner impugns the order passed by the Collector and District Magistrate, Chandrapur dated 27-6-1986 thereby ordering that the petitioner should deposit in the Government Treasury the evaded tax and surcharge of Rs. 67,349=75 plus penalty of Rs. 1,01,024=62 ps, totalling to Rs. 1,68,374=37 before 15-7-1986 and further ordering that on failure to do so, the amount will be recovered as per the provisions of Land Revenue Code.

2. The facts in brief out of which the present petition arises are as under :--That the petitioner is a proprietor of one Mahavir Touring Talkies, situated at Warora, Tq. Warora, District Chandrapur. The petitioner was served with show-cause notice dated 9-7-1986 under the provisions of Section 4B of the Bombay Entertainment Duty Act, 1923 (hereinafter to be referred to as the Act) for "best judgment". The show-cause notice states that on various earlier occasions the

petitioners touring talkies was raided by various authorities and it was found that the petitioner was using duplicate tickets and certain persons were watching the show without having tickets. It is further stated that despite giving various opportunities and various notices, the petitioner had failed to compound the matter and as such, he was directed to show-cause as to why suitable orders should not be passed to recover the entertainment tax as per the best judgment.

2. 3. Vide reply dated 19-7-1985 the petitioner replied to the said show-cause notice and denied the charges. The petitioner submitted that the petitioner was not evading the taxes and that the petitioner had not committed any defaults as alleged in the show-cause notice. The petitioner further submitted in the reply that the net income shown in the said show-cause notice was not correct. In fact, the net income of the petitioner was much more.

3. 4. The respondent No. 2 herein vide order dated 27-6-1986 rejected the contentions raised by the petitioner and held that the petitioner had evaded the taxes and directed him to pay the difference of taxes and penalty as aforesaid. In the order, the respondent No. 2 rejected the contention of the petitioner regarding the net income of the petitioner being more than as alleged in the show-cause notice. The respondent No. 2 in the order held that if the returns are to be accepted, then it could be assumed chat the petitioner was running the business in loss and that no prudent businessman would run the business in losses. On the basis of these assumptions, he came to a finding that the returns were incorrect and, therefore, held that the petitioner had evaded the tax. Being aggrieved by the said order, the petitioner approached this Court by way of present petition.

4. 5. Shri Bhangde, learned Counsel for petitioner, has raised

three-fold challenges to assail the impugned order. They are :--

I. That the Collector cannot resort to "best judgment" directly. That before resorting to the best judgment, he has to first give notice that the returns are incorrect. Thereafter give an opportunity to the assessee to show that the returns are correct and only after that if he comes to a finding that returns are incorrect, he can resort to "best judgment".

II. That the penal provisions could be invoked only when the returns are not filed by an assessee and since the petitioner had admittedly filed returns, the penalty could not have been imposed upon the petitioner.

III. The calculation of the net income per ticket is not correct and as such, there is an error apparent on the face of record.

1. 6. Smt. Jog, the learned Assistant Government Pleader, supported the order. She submits that it can be seen from the show-cause notice that the petitioner was habitual in not paying the taxes or running the shows in illegal manner. She submits that from the show-cause notice as well as the order itself it can be seen that the petitioner was served with various show-cause notices and as such,