JUDGMENT :

1. Heard Sri Aditya Tewari, learned Counsel for the petitioner and Sri Rajesh Kumar Shukla, learned Counsel appearing on behalf of the State.

2. The present petition has been filed challenging the order dated 31.08.2010 whereby the entertainment tax of Rs.3,17,378.04/- was imposed in exercise of powers conferred under Section 12 of The Uttar Pradesh Entertainment and Betting Tax Act, 1979 (hereinafter referred to as "The 1979 Act") along with penalty of Rs.20,000/-. The petitioner also challenges the order dated 21.01.2016 whereby the statutory appeal preferred by him was rejected as well as the order dated 30.03.2017 whereby the application for recall of the appellate order was also rejected.

3. The facts in brief are that the petitioner is a Company incorporated under The Companies Act, 1956 and is a Proprietor of a water park situate at Faizabad Road, Lucknow and runs a water park in the said premises in accordance with the permission obtained from the requisite authorities.

4. The contention of the Counsel for the petitioner is that the entertainment tax levied on the water park was exempted vide order dated 22.05.1998, however, the said issue need not detain us as the issue in the present case arises out of a survey conducted at the premises of the petitioner on 21.04.2010 and on the basis of the said survey, a show cause notice was issued to the petitioner on 05.05.2010 stating therein that on the date of the survey as conducted at the premises, on an inquiry, it was found that Rs.30/- per male and Rs.60/-per female was being charged towards costume and despite notice, the assessee has not come forward to disclose the said fact. It is further stated that the costume would also be subject to levy of entertainment tax in view of the provisions contained in Section 2(l)(iii) of the 1979 Act, thus it was proposed in the said show cause notice as to why the assessment may not be done at Rs.3,17,378.04/- and a penalty of Rs.20,000/- may not be imposed.

5. The petitioner preferred a reply to the said show cause notice denying all the allegations and also requesting that the petitioner may be provided with the copy of the survey report, proposed to be relied upon against the petitioner during the course of assessment proceedings, however, without giving any opportunity of hearing and without providing the said survey report, an order came to be passed on 31.08.2010. Assessing the entertainment tax on the renting of the costume at Rs.3,17,378.04/- and further a penalty of Rs.20,000/- was imposed upon the petitioner in purported exercise of powers under Section 12 of the 1979 Act. The petitioner preferred an appeal against the said order and took specific ground with regard to the non-providing of the survey report, however, the appeal was dismissed without granting opportunity of hearing and ex-parte in the absence of the petitioner. The petitioner preferred an order recall application which too was dismissed. The said three orders are under challenge before this Court.

6. The contention of the Counsel for the petitioner is that very foundation for charging entertainment tax on the 'costume' as alleged against the petitioner is wholly illegal, inasmuch as, in terms of the mandate of Section 2(l)(iii) of the 1979 Act, the costume would not come within the meaning as described, as such, very foundation based upon which the order has been passed is without any authority of law. He further argues that the petitioner had opened a separate counter at the park and has authorized a special contractor to give costumes on rent to whosoever desires and the said facility was not being managed by the petitioner and thus the petitioner was in any case not liable.

7. The Counsel for the petitioner further argues that taking of the costume was voluntary and was not a part of the 'payment for admission' and thus, the petitioner cannot be made liable even if for the sake of argument, all the allegations are treated to be correct. He further ar