Hon’ble Prakash Krishna, J.—The petitioner Shri O.P Sharma who is Magician has by means of the present writ petition challenged the orders dated 28.1.2011 and 29.1.2011 whereby the District Magistrate, Gorakhpur has directed the petitioner to pay a sum of Rs. 2,71,800.00 towards Entertainment Tax and Rs. 20,000/-, as penalty.

2. The petitioner applied for and was granted permission subject to certain conditions to perform magic shows for a period 6.1.2011 to 28.2.2011 from 9.00 a.m. to 9.00 p.m. at ‘Shree Talkies, Mohaddipur without payment of any entertainment tax. Armed with the aforesaid permission, the petitioner started giving his performance of magic show at Shree Talkies, Mohaddipur. The further allegation is that there was some dispute between the petitioner and the District officials with regard to issuance of free passes to the viewers. Resultantly, the District Magistrate issued a notice dated 22.1.2011 with the allegations that the petitioner is carrying on dance shows instead of showing magic to the public and was required to show-cause as to why the Entertainment Tax under the provision of U.P. Entertainment & Betting Tax Act 1979, may not be levied.

3. The cause was shown which was not found satisfactory by the District Magistrate who ultimately passed the impugned order demanding the payment of Entertainment Tax and also levied the penalty. Feeling aggrieved, the present petition has been filed. A counter-affidavit which is a short document has been filed by the respondents through Shri Mahendra Singh, Assistant Entertainment Commissioner.

4. In the counter-affidavit, the averments made in the writ petition have been denied by making general allegations. It has been stated that in the magic show, live dance programme was also shown. In the advertisement poster pasted in different parts of the District, dancers in dancing pose have been shown which clearly belies the case of the petitioner, vide paragraph 17 of the counter-affidavit. In paragraph 23 of the counter-affidavit an usual plea of availability of alternative remedy under the said Act has been set out.

5. The petitioner has reiterated his stand taken in the writ petition, in the rejoinder-affidavit.

6. Heard Shri Ashok Kumar, learned counsel for the petitioner and Shri A.C. Tripathi, learned standing counsel for the respondents.

7. The learned counsel for the petitioner submits that there is general exemption from payment of Entertainment Tax on magic shows. The State Government has issued exemption notification in exercise of its power under Section 11 of the Act, exempting the magic shows from payment of entertainment tax. One such notification was issued on 11.10.1995 vide (Annexure 3-A to the writ petition). In pursuance thereof, the petitioner applied for and was granted permission to hold magic shows subject to the conditions specified in the order passed by the Additional District Magistrate, Kanpur Nagar. None of the conditions having been violated, there was no question of realisation of any Entertainment Tax from the petitioner on such shows. In the show-cause notice dated 22.1.2011, the only material allegation against the petitioner is that on two occasions, after interval, two dances were performed on the pre recorded tune, by the dancers. The submission is that the period of one magic show is of two and half hours. In the said slot, a magician has to give many programmes of magic. Background music tune is an essential part of such performances. One or two dance performances on pre recorded tune for a total period of 5 to 7 minutes would not change the nature and character of magic show in any manner. Elaborating the argument, it was submitted that even classical and non-classical dances have been exempted from payment of Entertainment Tax by the State Government by issuing notification under Section 11 of the Act, from payment of Entertainment Tax. With regard to the question of availability of alternative remedy, it was submitted