TMI Blog2013 (6) TMI 586X X X X Extracts X X X X X X X X Extracts X X X X ..... the Tamil Nadu Entertainments Tax Act as unconstitutional. Regarding levy of Service Tax - Held that:- the petitioners have also challenged Section 4-I, stated in the affidavit in paragraph No.4, that the questions raised as to whether the activity of the petitioner would attract service tax liability and whether the levy by the State under the Tamil Nadu Entertainments Tax Act would amount to transgression of powers under Entry 62 List II of Seventh Schedule to the Constitution of India. When the contrary stand taken as regards the challenge on service tax was pointed out to the attention of the learned senior counsel, initially, we were informed that the petitioner had filed a Writ Petition before the Delhi High Court in July, 2012 questioning the levy of service tax. When the petitioner was asked to file an affidavit explaining their conduct in not disclosing the above-said facts of taking diametrically opposite stand from the one conceded before the Delhi High Court, the petitioner had filed an affidavit stating that realising that 88th Constitution Amendment introducing Entry 92C of List I of VII Schedule to the Constitution of India was not notified, the imposition of ser ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore the Supreme Court challenging the levy of entertainment tax, there is no direct answer explaining the conduct of the petitioners. The petitioners cannot speak in two tongues. Writ petitions challenging levy of service tax dismissed for suppression of facts from the High Court. - Decided against the assessee. - W.P. Nos. 25721, 25872, 25873, 25927 to 25929, 25986, 25987, 27070 to 27072, 28978 & 28979 of 2011 - - - Dated:- 19-10-2012 - Mrs. CHITRA VENKATARAMAN AND K. RAVICHANDRABAABU , JJ. For the Appellant: Arvind P. Datar, C. Prasanna Venkatesh, C. Natarajan, N. Inbarajan, A.V.K. Ezhilmani, Joseph George, N. Venkataraman and Mohammed. For the Respondents : S. Navaneetha, C.S. Vaidyanathan, R. Sivaraman, A.R. Jayapratap, Manoharan, Aaditya Reddy and N. Senthil Kumar. ORDER:- Mrs. Chitra Venkataraman, J. - The batch of Writ Petitions filed before this Court challenge the provision contained under Section 4-I of the Tamil Nadu Entertainments Tax Act, 1939, (hereinafter referred to as 'the Act'), as inserted under Amendment Act 25 of 2011, with effect from 27.09.2011, levying entertainment tax at 30% of the gross charges, excluding service tax ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itioners before those High Courts, which were considered and rejected by the other High Courts, the petitioners have also challenged the vires of Section 4-I of the Act as a colourable one, since Section 4-I of the Act, as it stands, seeks to tax the service aspect in DTH services. It is further contended that as a charging Section, Section 4-I of the Act fails to lay down in clear and explicit terms as what the taxable event is. Consequently, the charge under Section 4-I of the Act, fails. 5. The petitioners contend that the amendment brought under the Tamil Nadu Act 25 of 2011, by insertion of Section 4-I of the Act, is arbitrary, discriminatory and violative of Article 14 of the Constitution of India. There is no rational basis for treating DTH as a separate class for differential tax treatment from cable TV, taxed under Section 4-E of the Act. 6. Making particular reference to the decision reported in State of West Bengal v. Purvi Communication (P) Ltd. [2005] 140 STC 154 (SC), the petitioners further contend that the above decision by the Apex Court was prior to the service tax levy. Hence, the issue herein on the levy of entertainment tax on DTH requires fresh considera ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut to the detailed consultative process among the various stake-holders, that, ultimately, the Telecom Authority had fixed a uniform rate for DTH as well as for cable TV. It is stated that taking note of the viewing public interests and the content availability, the Central Government has fixed uniform rate, apart from the fact that the Telecom Authority have recommended digitalisation of cable TV with an addressable system, to bring about transparency in the conduct of business for the purposes of service tax levy as well as for better quality delivery to the subscribers. This indicates that there is no difference between DTH and Cable TV in the matter of providing entertainment. In other words, the content of entertainment under DTH is no different from those presented through cable TV services. Thus, in terms of content, rate and class of subscribers/viewers, DTH broadcasting services is similar to cable television services. Even though the mode of dissemination of information may be different between DTH broadcasting services and cable TV operators, both media are similarly placed in terms of content, information/ entertainment provided, rates charged and class of viewers. Refe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... would have no other choice but to discontinue the DTH broadcasting services and opt for those provided by the cable TV operator. Referring to the rates fixed by the Arasu Cable TV Corporation Limited, which has started cable TV operation as a multi-system operator in Chennai Metropolitan area and cable operators in other areas in the State, the petitioner contends that the subsidised rate fixed by the said Corporation had already created a disparity, carving for itself, a monopoly in television exhibition. The rate fixed by the Corporation is wholly unrealistic and grossly subsidised. Thus the classification made between cable TV exhibition, which enjoys exemption under the notification issued by the State and DTH broadcasting exhibition attracting 30% levy, is irrational and unreasonable and does not have any nexus to the object sought to be achieved by the amendment made inserting Section 4-I of the Act. The petitioners also challenge the levy under Articles 301 and 304B of the Constitution of India. 10. Apart from the challenge to Section 4-I of the Act on the ground of arbitrariness and hence, violative of Article 14 of the Constitution of India, the petitioner also challen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amil Nadu Entertainments Tax Act made under Entry 62 List II of VII Schedule to the Constitution of India. Before this Court, the petitioner contends that the essence of providing DTH service is nothing but providing entertainment; hence, the activity of the petitioner would not attract service tax. The petitioner contends that the transaction does not contain any characteristics of a service, which make the activities of the petitioner amenable to service tax. The petitioner points out that DTH is the provider of entertainment; under the DTH, service itself being an entertainment, there could be no levy of service tax; hence, providing DTH connection cannot be brought under the service tax provisions. 13. Thus, we have before us one set of writ petitions in W.P.Nos.25721 and 27070 to 27072 of 2011, primarily contending that DTH services is not entertainment; hence, being service, there could only be a levy under the Service Tax provisions of the Finance Act and to that extent, the provisions of Section 4-I of the Act are unconstitutional. The second set of writ petitions - Bharati Telemedia W.P.Nos.25928 and 25929 of 2011 and Bharath Business Channel Limited W.P.No.25872 of 201 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 92C List I of VII Schedule to the Constitution of India, the same could not be subjected to levy under the Tamil Nadu Entertainments Tax Act, it is stated that the levy of service tax is essentially a subject matter falling under Entry 92C List I of the VII Schedule to the Constitution of India, but the mere availability of Entry 92C List I of the VII Schedule to the Constitution of India to tax the service provided through DTH, however, cannot obliterate or wipe out the levy of tax on the entertainment provided. Being two different fields, there could be no overlapping of this levy. Hence, a harmonious construction consistent with the aspect theory must be adopted. The pith and substance of the levy, which is to be the focal point of consideration, that is, Entry 62 List II of the VII Schedule to the Constitution of India, fails. 18. Pointing out to the various Entries in the Lists dealing with the general topics and on the field of taxation, the State pointed out to Entries 33 and 62 of List II of VII Schedule to the Constitution of India and contended that while Entry 33 is a legislation dealing with theatres and dramatic performances, cinemas subject to the provisions of Ent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er stated that the taxable event could be gathered from the wording of the Section namely gross charges received by the provider of DTH . Going through the statement of objects and reasons, the definition on entertainment under Section 3(4) and direct to home service under Section 3(3B), the marginal headnote to the provision under Section 4-I and reading the Act as a whole, it is clear that the intention of the legislature is to tax on the entertainment provided through DTH service. Thus Sections 4, 4-D, 4-F, 4-G, 4-H and 4-J of the Act only provide for different modes of entertainment and each one is dealt with under separate charging Section. Referring to the challenge based on Article 14 of the Constitution of India, it is stated that the difference between cable TV and DTH are more than mere mode of delivery of signal and transmission. They have different characteristics and features. The system of transmission, the quality and the quantity of the content are different. The class of consumers is also different. The number of persons employed and the self-employment opportunities created are important social dimensions and that while DTH operators are few and are mainly la ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (ii) Sony India Ltd. v. CTO [2008] 18 VST 49 (Mad.) (iii) Twyford Tea Co. Ltd. v. State of Kerala AIR 1970 SC 1133 (iv) State of UP v. Kamla Palace [2000] 1 SCC 557 (v) Malwa Bus Service (P.) Ltd. v. State of Punjab [1983] 3 SCC 237 (vi) Kerala Hotel Restaurant Association v. State of Kerala AIR 1990 SC 913 (vii) State of Madhya Pradesh v. Gwalior Sugar Co. Ltd. [1962] 2 SCR 619 (viii) Tamil Nadu Cable TV Organisers (supra) by this Court; and (ix) East India Tobacco Co. v. State of Andhra Pradesh AIR 1962 SC 1733 Thus, the State justifies the classification and submits that in the light of the decisions of the Apex court, the challenge to the Amending Act has to fail. 24. Heard learned senior counsel appearing for the petitioners in the respective writ petitions, learned Advocate General appearing for the State, Mr. C.S. Vaidyanathan, learned senior counsel appearing for the State, Mr. N. Senthil Kumar, learned Senior Central Government Standing Counsel and perused the materials placed before this Court. 25. The Tamil Nadu Entertainments Tax Act, 1939, passed originally in the year 1939, was an Act to impose a tax on amusement and other entertainm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 23 of 2003, with effect from 01.06.2003. As in the nature of regulatory measures in the field of cable television network, the Parliament enacted the Cable TV Networks (Regulation) Act, 1995, introduced with effect from 29.09.1994. Entertainment through DTH services began from 2004 onwards. 27. Thus, taking note of the further technological advancement in the system offering entertainment through DTH and the entertainment provided through I.P.L. matches, the State of Tamil Nadu, by Amendment Act 25 of 2011 with effect from 27.09.2011, inserted Section 4-I in the Act to levy tax on Direct to Home Services and tax on cricket tournament conducted by I.P.L. The statement of objects and reasons for inserting the charging Section reads as under: The Tamil Nadu Entertainments Tax Act, 1939 (Tamil Nadu Act X of 1939) does not contain any provision to levy tax in respect of entertainment provided by DTH (Direct To Home service) and the cricket tournaments organized by the Indian Premier League (IPL). In certain States, entertainment tax has been levied on DTH service and on cricket tournaments conducted by the IPL. The Government have, therefore decided to include the DTH service a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... persons are admitted on payment; or television exhibition for which persons are required to make payment by way of contribution, or subscription, or installation or connection charges or any other charges collected in any manner whatsoever or an amusement or a recreation parlour where a game such as bowling, billiards, snooker or the like is provided or direct to home service or a cricket tournament conducted by the Indian Premier League; 3(9) proprietor in relation to any entertainment means a licensee of cinematograph exhibition under the Tamil Nadu Cinemas (Regulation) Act, 1955 (Tamil Nadu Act No. IX of 1955) or the licensee of an Exhibition of Cinematograph Film on Television Screen through Video Cassette Recorder or through Cable Television Network under the Tamil Nadu Exhibition of Films on Television Screen through Video Cassette Recorders and cable Television Network (Regulation) Act, 1984 (Tamil Nadu Act No. VII of 1984) or any person providing Television exhibition or any person providing amusement or any person providing recreation parlour or any person providing direct to home service or the Indian Premier League and includes the State Government, any local auth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and and five hundred rupees per month ( iv ) Within the limits of Village Panchayats constituted under the Tamil Nadu Panchayats Act, 1994 (Tamil Nadu Act No.21 of 1994). One thousand rupees per month (2) The tax levied under sub-section (1) shall be recoverable from the proprietor. (3) the provisions of this Act other than Sections 4, 4-B, 4-D, 4-F, 4-G, 5-F, 5-G, 6(1), 7 and 13 and the rules made thereunder shall, so far as may be, apply in relation to the tax payable under sub-section (1). 32. It may be noted herein that Section 4-D of the Act was a subject matter of challenge before this Court in a batch of Writ Petitions in W.Ps.Nos.16237, 16517 and 16272 of 1994 etc. (Tamil Nadu Cable T.V. Organisers Association (supra). Except for the grounds taken in the present Writ Petitions on service tax liability, and the challenge on the charging Section not providing the chargeable event, the challenge made therein on the vires of Section 4-E was almost on similar lines as are now taken in Section 4-I. Thus the contentions taken and considered by this Court in the batch of cases on Cable T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ejected. 34. On appeal by the cable TV operators, as against the judgment of this Court referred to above, in the decision reported in A. Suresh v. State of Tamil Nadu AIR 1997 SC 1889, the Apex Court upheld the decision of this Court. While agreeing with the reasoning and conclusion of the High Court on all the issues, the Supreme Court pointed out that it was unnecessary to deal with all the issues except issue No.3 on the challenge based on Article 19(1)(a), Issue No.4 the Amending Act was a colourable legislation and Issue No.7 rate of tax was prohibitive, designed to kill the cable television in the interest of cinema theatres. After referring to Indian Express Newspapers (Bombay) (P.) Ltd. v. Union of India AIR 1986 SC 515, the Apex Court rejected the challenge based on Article 19(1)(a) of the Constitution of India. It observed that there was no reason as to why the entertainment part of it could not be taxed. Quoting from Corpus Juris Secundum (Vol. 16) the Supreme Court pointed out ..... The guarantee of freedom of the press does not forbid the taxation of money or property employed in the publishing business, or the imposition of reasonable licenses and license fees on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion network. The performance, film or programmes shown to the viewers through the cable television network come within the meaning of entertainments and therefore within the legislative competence of the State Legislature under Entry 62 of List II of the Seventh Schedule to the Constitution to make law for the levy and collection of tax on such entertainments. 37. It is now stated that under G.O.No.34 dated 27.3.2004, with effect from 01.04.2008, the Government of Tamil Nadu granted exemption from tax in respect of cinematograph film exhibited on television screen through cable TV network and Television exhibition. 38. It may be seen that as in the State of Tamil Nadu, various other States amended their respective State's Entertainments Tax Acts also, to charge the entertainment offered through DTH under the respective State Entertainments Tax Acts. The petitioners before the other respective Courts, who are now petitioners before this Court, accordingly challenged the provision on the levy of entertainment tax on DTH under the respective State enactments almost on similar grounds, as are taken now before this Court, that DTH is more in the nature of service, attracting ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve to be collected by the DTH service provider and paid to the government but, those are matters concerning incidence and measure of the tax, which, we have seen, is irrelevant for determining the subject-matter of a tax. It further pointed out The DTH service provider, in a sense only acts as a conduit between the content providers (i.e., TV Channels) and the content viewers (i.e., subscribers). It is the entertainment derived from the content that is the subject matter of the tax under the said Act and not the service of enabling the flow of content through the DTH system. There is no scope of confusing one for the other. Even if we assume that the concepts are intertwined, the strands can easily be separated by employing the aspect theory. The DTH system had two aspects - (1) a service aspect; and (2) an entertainment aspect. The former is taxed as a service under the service tax regime and the latter is subjected to tax as an entertainment under the said Act read with entry 62 of List II. They are two separate and distinct taxable events in respect of each of the two aspects. In respect of the service aspect, the taxable event is flow of content through the DTH system, wherea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tertainment Tax Act and not the service of enabling the flow of the content through DTH. Pointing out that DTH has two aspects service aspect and entertainment aspect, the consistent view of the Courts on the present petitioners' case is that while the providing of service is taxed under the service tax legislation, the content of providing the entertainment is a subject of charge a subject falling under Entry 62 List II of VII Schedule to the Constitution of India and hence, both are two different taxable events and there is no overlapping. The Delhi High Court held that even assuming that the concepts are intertwined, the strands can easily be separated by employing the aspect theory. The direct-to-home system has two aspects - a service aspect and an entertainment aspect. The former is taxed as a service under the service tax regime and the latter is subjected to tax as an entertainment under the Delhi Entertainments and Betting Tax Act read with Entry 62 List II of VII Schedule to the Constitution of India. They are two separate and distinct taxable events in respect of each of the two aspects. In respect of the service aspect, the taxable event is the flow of content throu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2 List II of VII Schedule to the Constitution of India. Hence, Section 4-I of the Act is ultra vires. Even assuming that the State could levy tax on the entertainment aspect in the providing of the service, in the absence of any apportioning of the charges between service element and entertainment element, the levy under Section 4-I of the Act, fails. 45. In this connection, Mr. Arvind P. Datar, learned senior counsel appearing for the petitioners in W.P.Nos.25721, 27070 to 27072 of 2011, referred to the Constituent Assembly deliberations on 2nd September, 1949 on the introduction of Entry 44 List II of VII Schedule in the Draft Constitution Bill based on the deliberations and contends that the tax on entertainment under Entry 62 List II of VII Schedule to the Constitution of India could only be on public entertainment and if there is to be a tax on DTH, which is in the nature of private entertainment, it being outside the scope of List II of VII Schedule to the Constitution of India, not being a topic found under List II and List III of VII Schedule to the Constitution of India, it can only be under List I of VII Schedule to the Constitution of India. Thus, going by the limited ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le to the Constitution of India. Given the fact that the discussion of the Constituent Assembly clearly discloses the intent in including all public entertainments alone under the State List, one cannot give a liberal interpretation to the word entertainment , appearing in Entry 62 List II of VII Schedule to the Constitution of India, to include private entertainments too; while all public entertainments could be taxed under Entry 62 List II of VII Schedule to the Constitution of India, private entertainment would fall only under the Union List. 48. Referring to the decisions reported in Supreme Court Advocates-On-Record Association v. Union of India AIR 1994 SC 268, Hinsa Virodhak Sough v. Mirzapur Moti Kuresh Jamat [2008] 5 SCC 33, Indra Sawhney v. Union of India [1992] Supp (3) SCC 217, S.R. Chaudhuri v. State of Punjab [2001] 7 SCC 126 and V.G. Rao v. State of Madras AIR 1951 Mad. 147, he submitted that the changing times and technology development cannot, however, be taken as a ground for expanding the word entertainment to include private entertainment under Entry 62 List II of VII Schedule to the Constitution of India. He submitted that the emphasis under Entry 62 List ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of 2011 have made a similar challenge before the Uttar Pradesh High Court, Gujarat High Court, Madhya Pradesh High Court and Delhi High Court and the same was rejected. The question as to whether there is any entertainment to be taxed at all, was also considered and negatived by the other High Courts. Hence, it is not open to the petitioners to raise the self-same question for a decision before this Court. 50. On the aspect theory, he submitted that the above issues were considered in a number of decisions as in the case of expenditure tax levied by the Central Government in the decisions reported in Elel Hotels Investments Ltd. v. Union of IndiaFederation of Hotel Restaurant Association of India v. Union of India [1989] 3 SCC 634 and International Tourist Corpn. v. State of Haryana [1981] 2 SCC 318 in respect of levy of tax on passengers and goods under the Haryana Goods and Passengers Taxation Act of 1952, as falling under Entry 60 List II and service tax levy under Entry 92C/Entry 97 List I and the decision reported in Bharat Sanchar Nigam Ltd. v. Union of India [2006] 3 STT 245 (SC) as regards the levy of sales tax on the transaction on the mobile phone services vis-a-v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the width of the legislative power to tax on entertainment, i.e., Entry 62 List II of VII Schedule to the Constitution of India operates only as regards the taxation of public entertainments. We may point out that we are in respectful agreement with the view expressed by other High Courts on this. We agree with the learned Senior Counsel appearing for the State that there can be no fresh dispute to raise before this Court on the self-same point. 53. We hold that, we do not find any justifiable ground to restrict the meaning of the term 'entertainment' to public entertainment only. Secondly, in any event, we do not find any good ground to read an 'entertainment' through DTH as a private entertainment. We also do not find any overlapping of the Entries on taxation under the service tax levy and under the entertainment tax levy. 54. Before considering the contentions, the discussion of the Constituent Assembly on the introduction of Entry 44 List II of the Draft Constitution, which is the present Entry 33 List II of VII Schedule to the Constitution of India, on which heavy reliance is placed as to the scope of Entry 62 List II of the Constitution of India, needs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Entry 33, which reads as under: Theatres and dramatic performances, cinemas subject to the provisions of entry 60 of List I; sports, entertainments and amusements. 55. On the relevance of the above debate in the Constituent Assembly throwing light on the scope of the Entry 62 List II of VII Schedule to the Constitution of India, learned Senior Counsel referred to the decision reported in Indra Sawhney (supra) and submitted that going by the debates as regards Entry 33 List II, it is clear that private entertainment cannot be the subject matter of Entry 62 List II of Schedule VII to the Constitution of India. The consideration on the speeches of the Members of the Constituent Assembly, no doubt, can be relied on as an aid to interpret the constitutional provision. The Apex Court pointed out that where the expression used are not defined in the Constitution, reference to such debates is permissible to ascertain the background, the context and the objective behind them. The amended Entry, as proposed and adopted under Entry 44 List II of VII Schedule to the Constitution of India in the Draft Bill, reads as - Theatres, dramatic performances, cinemas, sports, entertainments and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ule to the Constitution of India, in order to avoid any possible conflict between it and Entry 60 List I of VII Schedule to the Constitution of India. The Supreme Court further observed that Entry 33 List II and Entry 60 List I of VII Schedule to the Constitution of India have no relevance to Entry 62 List II of VII Schedule to the Constitution of India, with which we are concerned. In the decision reported in Purvi Communications (P.) Ltd. (supra), while dealing with the challenge on the levy of entertainment tax on Cable Television under the West Bengal Entertainment-cum-Amusement Tax Act, 1982 and the Cable Television Networks (Regulation) Act, 1995, made by the Union Parliament, the Supreme Court considered Entry 62 List II of the VII Schedule to the Constitution of India. The Apex Court observed: 41. A tax under Entry 62 of List II of Seventh Schedule to the Constitution of India may be imposed not only on the person spending on entertainment but also on the act of a person entertaining, or the subject of entertainment. It is well settled by this Court that such tax may be levied on the person offering or providing entertainment or the person enjoying it. The respondents a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der the Government of India Act, 1935, in the decision reported in the matter of the Central Provinces Berar Sales of Motor Spirit Lubricants Taxation Act, 1938, In re AIR 1939 FC 1 it was observed by Jayakar,J the provisions of an Act, like the Government of India Act, 1935, should not be cut down by a narrow and technical construction, but, considering the magnitude of the subjects with which it purports to deal in very few words, should be given a large and liberal interpretation, so that the Central Government, to a great extent, but within certain fixed limits, may be mistress in her own house, as the Provinces, to a great extent, but again within certain fixed limits, are mistresses in theirs: (see H.M. Edwards v. Attorney General for Canada [1930] A C 124 at pp.136 and 137. 61. Thus being an organic living document, as observed in the decision reported in Kesoram Industries Ltd. (supra), the outlook on the expressions in the Lists, as perceived and expressed by the interpreters of the Constitution, must be dynamic and keep pace with the changing times. The Constitution Bench of the Apex Court considered the scheme of nature and scope of power to legislate under Entri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the competence to legislate flows from Articles 245, 246 and the other Articles in Part XI of the Constitution of India. In considering the challenge made on the levy of service tax on Chartered Accountants, Cost Accountants and Architects, the Supreme Court held that, for deciding the true character and nature of a particular levy with reference to the legislative competence, the Court has to look into the pith and substance of the legislation. Tax laws are governed by Part XII and Part XIII of the Constitution of India. The Apex Court held that taxes on services is a different subject as compared to taxes on professions, trades, callings, etc. Therefore, Entry 60 of List II and Entries 92C/97 of List I of the VII Schedule to the Constitution of India operate in different spheres. Considering the nature of levy, the Apex Court observed that the word professions under Entry 60 List II of VII Schedule to the Constitution of India cannot be made synonymous with the word services and therefore, service tax would fall under the residuary Entry 97 read with Entry 92C List I after 2003. Thus when the authority to legislate is clear in giving due weightage to the fact with respe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s as was done in The C.P. and Berar Act case (supra), or to enlarge their ordinary meaning as in The State of Bombay and Another v. F.N. Balsara [1951] S.C.R. 682. The cardinal rule of interpretation, however, is that words should be read in their ordinary, natural and grammatical meaning subject to this rider that in construing words in a constitutional enactment conferring legislative power the most liberal construction should be put upon the words so that the same may have effect in their widest amplitude. 68. The Supreme Court pointed out that under a flexible construction or generic interpretation, while the power remains the same, new developments of the same subjects and new means of executing an unchanging power do arise from time to time and the extent and ambit of the Entry may grow in the progress of the society. 69. Referring to the judgment reported in Raja BahadurKamakshya Narain Singhof Ramgarh v. CIT [1943] 11 ITR 513 (PC) [1943] 11 ITR 513 (PC), the Supreme Court held that income is a word difficult and perhaps impossible to define in any precise general formula and pointed out that the ordinary English word income has not acquired a particular restricte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thereof are in a broad sense capable of containing them. In that situation, it is not , as observed by Lord Wright in James v. Commonwealth of Australia (H), that the meaning of the words changes, but the changing circumstances illustrate and illuminate the full import of that meaning . The question then would be not what the framers understood by those words, but whether those words are broad enough to include the new facts. The Apex Court pointed out: The ratio of the rule of interpretation that words of legal import occurring in a statute should be construed in their legal sense is that those words have, in law, acquired a definite and precise sense, and that, accordingly, the legislature must be taken to have intended that they should be understood in that sense. In interpreting an expression used in a legal sense, therefore, we have only to ascertain the precise connotation which it possesses in law. 72. In so holding, the Apex Court pointed out that legal terms having acquired a definite and precise meaning, the Legislature must be taken to have intended that they should be understood in that sense. Thus Sale of Goods has a well established legal meaning in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the List. Thus, when the Legislature is given power to make law, with respect to , the matters enunciated in the respective Lists, it is a matter to be determined in each case as to the true substance of the enactment, wherein the doctrine of pith and substance and aspect theory assume significance. 76. Pointing out to Entry 62 List II of VII Schedule to the Constitution of India, specifically to Luxury as indicating an attribute as a taxable event as well as a subject of tax by itself in contrast to other Entries on taxation where the objects of taxation are articles/ things, the Supreme Court pointed out that where articles have been made the object of taxation, either by way of a general Entry or as an object of taxation, the Entries in the Legislative Lists have specifically said so. Pointing out to the various Entries dealing with a levy of tax as for example, Entries 53, 56, 57 and 58, the Supreme Court held there is no instance in any of the legislative lists of a tax being leviable only with reference to an attribute. An attribute as an object of taxation without reference to the object, it qualifies would lead to legislative mayhem, blur the careful demarcation betw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Constitution of India. The argument that entertainment is a legal term was rejected by this Court in Cable TV Operators' case, which was subsequently confirmed by the Supreme Court in the decision reported in A. Suresh (supra). 79. On aspect theory, in the decision reported in Kesoram Industries Ltd. (supra), the Apex Court pointed out that the machinery employed for assessing the tax must not be confused with the nature of tax and the amount may be measured in many ways; but the distinction between the subject matter of tax and the standard by which the tax is measured must not be lost sight of. The concepts are described as subject of tax and measure of tax. While the subject of tax is clear and well-defined, the amount of tax is capable of being measured in many ways for the purpose of quantification. The Apex Court pointed out that defining the subject of tax is a simple task, devising the method of taxation is a far more complex exercise and hence, the Legislature has to be given more flexibility in the latter field (Article 14). 80. In the unreported decision of this Court dated 30.11.1994 in W.Ps.Nos.16237, 16517 and 16272 of 1994 etc. Tamil Nadu Cable TV Organi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me. The individual who forms part of the public derives the entertainment which is available to all those having the facility of DTH to have the entertainment content. The place from which the entertainer watches the entertainment does not make the 'entertainment' any the less, a public entertainment. Given the fact that the same entertainment is offered to all those who subscribe for the DTH and Cable TV, we do not find that the mode of receiving the entertainment would pronounce on the character as private entertainment and not a public entertainment. The entertainment offered in a theatre to the individual on payment of fee for admission does not make the entertainment any a degree greater as a public entertainment than an entertainment received in DTH on payment of subscription fee. Thus the facility of choosing the time, place, mode or the content, does not, in any manner, convert entertainment through DTH, a private entertainment. The subject matter of tax and the incidence of tax being entertainment itself, we find no justifiable ground to read any limitation into this expression. As in the case of income , the word entertainment is a word difficult and perhaps im ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ision of taxing powers between the States and the Centre is not based on any criterion depending on the incidence of the tax. The classic example is the levy of excise duty imposed by the Parliament and the General Sales Tax by the States. The decisions of the Apex Court reported in Province of Madras v. Boddu Paidanna Sons [1941] 2 MLJ 607, Central Provinces Berar Sales of Motor Spirit Lubricants Taxation Act, 1938 (supra) and CIT v. M.P.V. Sundaramier Co. [1977] 107 ITR 417, followed in a series of decisions, emphasize on the importance of the doctrine of pith and substance in deciding the scope of each of the Entries in the three Lists in the Schedule. In the decision reported in All India Federation of Tax Practitioners (supra), the Apex Court pointed out The bottom line of the said doctrine is to look at the legislation as a whole and if it has a substantial connection with the entry, the matter may be taken to be legislation on the topic. That is why due weightage should be given to the words with respect to in Article 246 as it brings in the doctrine of pith and substance for understanding the scope of legislative powers. Taxes on DTH service is a different subject ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the aspect of the interpretation of Entries and the transaction having more than one element, which may attract more than one field of operation on the Entries in the Lists, the pith and substance of the levy under Entry 62 List II of VII Schedule to the Constitution of India being tax on entertainments, as far as levy of entertainment tax is concerned, what is sought to be taxed is not the service provided by the service provider, but the aspect or the content in the service, namely, 'entertainment' which is not the same as service itself. In this, we do not find any clash of Entries as had been spoken to by the petitioners herein or overlapping of the fields of legislation to hold that entertainment tax is not leviable. 91. In the decision reported in Kesoram Industries Ltd. (supra) referring to the aspect theory, the Supreme Court pointed out that the transaction may involve two or more taxable events in its different aspects. Merely because the aspects overlap, the same does not detract from the distinctiveness of the aspects. Thus, there could be no question of a conflict solely on account of two aspects of the same transaction being made a subject matter of legisla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tax under the Rajasthan Sales Tax Act on the sale of notified goods on the statutory retail price declared on the package of such goods. The measure with which total turnover was to be determined there was not part of the sale which attracted tax, but it was based on MRP which a wholesaler could charge, which was also fixed by the Control Order. Referring to the scheme of the Act, the Supreme Court held that a maximum retail price as a pack had no rational connection with the taxable sale with the wholesales and that there was no nexus between the measure of levy and subject of levy. Pointing out to the meaning of expression sale of goods or price or consideration, element of such sale of goods as taxable event, the Supreme Court held that if price was to be the basis for measuring tax, it must relate to actual transaction of sale which was the subject of tax and not to a different transaction that might take place in future at a price. The Supreme Court observed that if the legislation could provide for a measure of tax and subject of tax by substituting any notional value which at no point of time was part of or related to subject of tax, namely, sale of goods that it is rel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be given much more flexibility in the latter field. The mechanism and method chosen by the legislature for quantification of tax is not decisive of the nature of tax though it may constitute one relevant factor out of many for throwing light on determining the general character of the tax. 98. Referring to the decision reported in Ralia Ram v. Province of East Punjab AIR 1949 FC 81, Sainik Motors v. State of Rajasthan AIR 1961 SC 1480, D.G. Gous Co. (P) Ltd. v. State of Kerala [1980] 2 SCC 410, Hingir-Rampur Coal Co. Ltd. v. State of Orissa AIR 1961 SC 459, Buxa Dooars Tea Co. Ltd. v. State of West Bengal [1989] 3 SCC 211, Goodricke Group Ltd. v. State of West Bengal [1995] Supp (1) SCC 707 and R.R. Engg. Co. (supra), the Supreme Court pointed out: 126. (i) a financial levy must have a mode of assessment but the mode of assessment does not determine the character of a tax. The nature of machinery for assessment is often complicated and is not of much assistance except insofar as it may throw light on the general character of the tax. The annual value is not necessarily an actual income but only a standard by which income may be measured. Merely because the same standard o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entertainment. 102. The reasoning given by the Supreme Court, in effect, is no different from what was considered in the decision reported in All India Federation of Tax Practitioners (supra) on the applicability of the principles of pith and substance. The fact that the decision was given prior to the introduction of the service tax, does not, in any manner, lose its significance on the rationale of the decision, namely, the emphasis on the theory of pith and substance. Even though Entry 92C List I VII Schedule to the Constitution of India might not have been an issue before the Court in the case of Purvi Communication (P.) Ltd. (supra), yet, the contentions similar to the one taken by the petitioners was already considered by the Apex Court in the decision reported in All India Federation of Tax Practitioners (supra) as well as in the decision reported in Imagic Creative (P) Ltd. (supra). 103. In the light of the above discussion, we hold that the contention of the petitioners as to the scope of Entry 62 List II of VII Schedule to the Constitution of India as covering entertainment in public places, fails. So too, the contention that the tax on entertainment is, in pith and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as no nexus to the object of the Act. The flat rate of 30% throughout the State is unjustified and DTH has been singled out, to promote Arasu TV Corporation. 107. Learned senior counsel placed heavy reliance on the decision of the Apex Court reported in Indian Express Newspapers (Bombay) (P.) Ltd. (supra), particularly to paragraph 45, in support of the contention that right to entertainment is also included in the content of Article 19(1)(a) of the Constitution of India, that a citizen has a right to use the best means of imparting and receiving information. The tax levied must also respect the right guaranteed under Article 19(1)(a) of the Constitution of India. 108. Contending that the classification made on the entertainment through DTH, as a separate class, has no reasonable and rational basis and hence violative of Article 14 of the Constitution of India, he submitted that even though in the decision reported in A. Suresh (supra), the Apex Court upheld the levy of entertainment tax on cable TV operators and rejected the stand of the petitioners on Section 4-E of the Act based on Articles 14 and 19(1)(a) of the Constitution of India, this was only after comparing the rat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ous stakeholders treated cable TV service and DTH service through addressable system as equals, as far as the entertainment content is concerned. The Statutory Authorities constituted under the Telecom Regulatory Authority of India Act, 1987, recognised this for treatment of tariff parity. 111. In support of his contention on Article 14 violation, he further referred to the Government of India's Cable TV Network Regulation Ordinance, 2011, emphasizing the need for digital addressable system from analog TV system to promote transparency to check signal piracy and to check evasion of service tax prevalent in analog cable TV operation. The Authority also found the addressable digital form as akin to DTH. Referring to the various explanatory memorandum and the recommendation for implementing the digital Cable TV System, the consultative process that had gone in for giving parity treatment to Cable TV and DTH, learned senior counsel submitted that the counter filed, failed to make out a case for differential treatment meted out to DTH. 112. Countering the submission of the petitioners on the charging provision not providing for the chargeable event in clear terms, Mr. C.S. Vai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arned senior counsel appearing for the State, referred to Paragraph 17 of the decision of the Apex Court reported in State of Bihar v. Bihar Distillery Ltd. [1997] 2 SCC 453, holding that the Court should recognise the fundamental nature and importance of a legislative process and accord due regard and reference to it. 115. On the question of the challenge made on the provision being discriminatory, hence, violative of Article 14, learned senior counsel reiterated the contentions as given in the counter that in considering the question, one must keep in mind the quality of service and the facility provided through digital communication and the kind of entertainment provided by the channels through DTH, which is not available in cable TV. 116. DTH is a capital intensive one run by big industrial houses, employs few hands to reach the consumers directly; the competition that it throws to the cable TV is totally a different one. The capacity to pay for entertainment through DTH is vastly different from those who opt for cable TV. The present attempt on digitization cannot be taken into consideration in considering the position of law which existed prior to this. There is no uneq ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ively and it is not necessary for us to once again burden this judgment by repeating the same once again in extenso. The said decision was affirmed by the Apex Court in the decision reported in A. Suresh (supra). The Apex Court considered the submission of the petitioners that the immediate and direct effect of taxation at the rate of 40% of the petitioner's collection was to deprive the petitioners of their fundamental right of freedom of speech and expression. The Supreme Court rejected such a contention and pointed out to the nature of activity carried on by the petitioners therein. It pointed out that by means of cables, the TV sets in the homes of the subscribers are linked to their apparatus, so as to enable the subscribers to receive the programme relayed by the telecasters. For this service, the subscriber is charged an amount every month. Thus, the fact remains that the petitioner's activity is a combination of two rights i.e., business and speech - Articles 19(1)(g) and 19(1)(a) of the Constitution of India. It observed that there is no reason why the business part of it cannot be taxed. If tax can be levied upon entertainment provided by cinemas, if tax can be l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... justifiable ground to accept the plea of the petitioners that the levy of 30% tax infringes on the fundamental rights guaranteed under Articles 19(1)(a) and 19(1)(g) of the Constitution of India. 125. The decisions relied on under Article 19(1)(a) of the Constitution of India do not have any relevance as far as the tax levied on entertainment and collected from the provider of entertainment are concerned. In the circumstances, we reject the contention of the petitioner based on Article 19(1)(a) and 19(1)(g) of the Constitution of India. Charge under Section 4-I of the Tamil Nadu Entertainments Tax Act: 126. One of the questions raised in the writ petition filed in W.P.No.25987 of 2011 is on the fundamental flaw in the charging provision contained in Section 4-I of the Act. The said issue is raised as an additional issue in M.P.No.2 of 2012. The petitioners state that when the charging provision fails to spell out the subject matter of charge, the Section fails. The petitioners state that the charging provision has to clearly spell out the three components of levy, namely, subject of tax, person who is to be taxed, the rate and the measure of tax on which the tax has to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... activity of providing DTH services is not the same as the entertainment content flowing from that activity. Pointing out to sub-section (2) of Section 4-I of the Act as providing for the machinery on recovery of the tax levied under Section 3(1), he submitted that the measure of levy cannot be taken as suggestive of the nature of tax levied on the taxable event. Referring to the decision reported in Kesoram Industries Ltd. (supra), he drew our attention particularly to paragraphs 104, 105, 106 and 107, that the tax may be measured in many ways, but the distinction between the subject matter of tax and the standard, the amount of tax by which the tax is measured must not be lost sight of. While pointing out to the competency of the legislature to legislate an Act to levy entertainment tax, the charge has to be specific in all aspects. The measure of tax and the recovery provisions, by itself, cannot fill up the gaps seen in the charging provision as regards the taxable incident and where the incidence of tax falls. Referring to the decisions of the Apex Court reported in Govind Saran Ganga Saran (supra), he pointed out that the principles governing the interpretation of a charging ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tate of Tamil Nadu [2002] 37 SCL 425 (SC) and at paragraphs 23, 25 and 27 ITC Ltd. v. CCE [2004] 7 SCC 591. 129. Learned senior counsel appearing for the State further pointed out that given the normal presumption that the provision is a valid one, the endeavour of the Court should be to uphold the charging provision. In order to do so, the Court can even iron out the imperfection in the language used. Consequently, the provision has to be viewed with greater flexibility. Learned senior counsel appearing for the State referred to the theory of pith and substance of tax and not merely to the form. When the Section refers to the gross amount received by the provider of DTH, it is clear that what is sought to be taxed is only entertainment; hence, the incidence of tax is on entertainment. 130. The challenge that the petitioners make herein is that the charging Section does not, in clear and explicit terms, lay down the taxable event under Section 4-I of the Act. Going by the well laid down principles considered in various decisions of the Apex Court relating to the understanding of the components of a charging provision, in the absence of clear terms identifying the chargeable e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... intendment. There is no equity about a tax. There is no presumption as to a tax. Nothing is to be read in, nothing is to be implied. One can only look fairly at the language used. 134. Dealing with the components which enter into the concept of taxing provision, in the decision reported in Govind Saran Ganga Saran (supra), the Apex Court pointed out: 6. The components which enter into the concept of a tax are well known. The first is the character of the imposition known by its nature which prescribes the taxable event attracting the levy, the second is a clear indication of the person on whom the levy is imposed and who is obliged to pay the tax, the third is the rate at which the tax is imposed, and the fourth is the measure or value to which the rate will be applied for computing the tax liability. If those components are not clearly and definitely ascertainable, it is difficult to say that the levy exists in point of law. Any uncertainty or vagueness in the legislative scheme defining any of those components of the levy will be fatal to its validity. 135. In the decision reported in Kesoram Industries Ltd. (supra), the Constitution Bench of the Apex Court referred t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot necessarily determine it. The nature of mechanism by which the tax is to be assessed is not decisive of the essential characteristic of the particularly tax charged, though it may throw light on the general character of the tax. 136. Section 4-I of the Tamil Nadu Entertainments Tax Act was inserted by Amendment Act 25 of 2011 with effect from 27th September 2011. Although we have already extracted the charging Section under Section 4-I of the Act at the beginning of this judgment, for convenience sake and ready reference, we need to extract it herein. Section 4-I of the Act reads as under: 4-I Tax on direct to home service. - (1) Notwithstanding anything contained in Sections 4 and 7, there shall be levied and paid to the State Government a tax (hereinafter referred to as the 'entertainment tax') calculated at the rate of thirty per cent of the gross charges excluding the service tax, received by the provider of a direct to home service. (2) The tax levied under sub-section (1) shall be recoverable from the proprietor. (3) The provisions of this Act (other than Sections 4, 7 and 13) and the rules made thereunder shall, so far as may be, apply in relation to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction provides herein is the rate of tax and the measure of tax and nothing beyond. As pointed out in the decisions referred to above, even though the standard adopted as a measure of levy may be indicative of the nature of the tax as a direct or indirect tax, yet, it does not necessarily determine it. If one has to read the heading and the purpose of the amendment and the measure of tax as indicative of the chargeable event into the Section as has been contended by the State, this will amount to judicial legislation of introducing a vital link absent in the charging provision for the sake of sustaining the charge. We do not approve this line of reasoning of the State and what the legislature has failed to do, it is not for the Court to supply it. While we do not deny that on a challenge made to a provision of law, the Court must make every endeavour to uphold the constitutionality of the provisions, we are also conscious of the law that no citizen shall be charged with any liability in the absence of clear charging provision in a taxing enactment. Thus, with the defects pointed out, the charge fails and as had been held in several decisions, no word can be added or subtracted from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ime, notify in this behalf, which shall be collected by the proprietor and paid to the Government in the manner prescribed. 140. Learned Senior Counsel appearing for the State placed great emphasis on the collection of tax from the provider of DTH as indicative of the levy being on entertainment, that the object of the legislation clearly throws light on what is sought to be taxed and that the interpretation of the charging provision cannot be different from that of the machinery provided. 141. It is worthwhile herein to remember what was held in the decision reported in Cope Brandy Syndicate (supra). In a Taxing Act one has to look merely at what is clearly said. There is no room for any intendment. There is no equity about a tax. There is no presumption as to a tax. Nothing is to be read in, nothing is to be implied. One can only look fairly at the language used. 142. The law declared is an evergreen principle, having relevance even to this date in the matter of understanding the charging Section. In the decision reported in Mathuram Agrawal (supra), cited by the learned senior counsel appearing for the Petitioners in W.P.Nos.25986, 25987, 28978 and 28979 of 2011, the A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Goodyear India Ltd. v. State of Haryana [1990] 2 SCC 71, the Apex Court observed that though the standard of the measure at which tax is levied may be a relevant consideration in considering the nature of tax, it is not a conclusive consideration. Referring to the decision reported in Goodricke Group Ltd. (supra), in the decision reported in Kesoram Industries Ltd. (supra), the Apex Court held that a transaction may involve two or more taxable events in its different aspects. Merely because the aspects overlap, such overlapping does not detract from the distinctiveness of the aspects. In our opinion, there is no question of conflict solely on account of two aspects of the same transaction being utilised by two legislatures for two levies both of which may be taxes or fees or one of which may be a tax and the other a fee falling with two fields of legislation respectively available to the two. Referring to the decisions reported in Ralia Ram (supra), Kunnathat Thathunna Moopil Nair v. State of Kerala AIR 1961 SC 552 and Ajoy Kumar Mukherjee v. Local Board of Barpeta AIR 1965 SC 1561, the Apex Court pointed out that the validity of cess upon the land quantified by reference to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ax, namely, the gross charges received by the provider of Direct to Home Services and this has nothing to do with showing the charge and the incidence of tax in clear and explicit terms with certainty. Thus, going by the well laid down principles in the case of Cope Brandy Syndicate (supra), which has been consistently followed ever since the time of its pronouncement, there can be no doubt that the charging Section does not go for an interpretative process to search for where the chargeable incident is provided and on whom the liability falls. There is no equitable consideration while construing a charging provision. The charging Section has to be explicit, certain and clear, in order to bind the subject. In the decision reported in M.P. Cement Manufacturers' Association v. State of MP [2004] 2 SCC 249, the Apex Court pointed out it is not for the Court, particularly when legislative clarity is required since the statutory provision imposes a tax, to untangle the legislative confusion. No doubt, while considering a challenge to the constitutionality of a statutory provision, the Court will lean in favour of upholding its validity. But this does not mean that in this process ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion and all parts of refrigerating and air-conditioning appliances and machines whether they are covered or not covered under sub-items (1) and (2) would be clearly covered under that sub-item. Therefore, whether the manufacturer supplies the refrigerating or air-conditioning appliances as a complete unit or not is not relevant for the levy of duty on the parts specified in sub-item (3) of Item 29-A. What holds good for the heading holds good for the objects and reasons leading to the enactment of Section 4-I of the Act. If the contention of the State is to be accepted, it would amount to the Court supplementing the charging Section by including the expression which the Section does not contain. The charging provision has to be tested on the strength of what is explicitly stated and it is not for the Court to supply the missing links to make it workable. 151. The validity of levy of entertainment tax on DTH came up for consideration before the Punjab and Haryana High Court in the decision reported in Tata Sky Ltd. (supra), Delhi High Court in Bharti Telemedia Ltd. (supra), Madhya Pradesh High Court vide Tata Sky Ltd. (supra), , Uttar Pradesh High Court in W.P.No.1819 of 20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Tamil Nadu Entertainments Tax Act. 154. The question raised before the Delhi High Court in the decision reported in Bharti Telemedia Ltd. (supra) related to the levy of entertainment tax on the entertainment provided through DTH. After referring to the decision of the Supreme Court on the principles concerning interpretation of taxing entries in the Union List and the State List, from the standpoint of legislative competence, the Delhi High Court held that the programmes shown through DTH come within the meaning of entertainment and therefore within the legislative competence of the State Legislature to levy tax under Entry 62 List II of VII Schedule to the Constitution of India. On an analysis of the provision, the Delhi High Court held that the charging provision thus makes it clear that the levy is on entertainment; that the tax levied under the Delhi Entertainments and Betting Tax Act is neither on the provider of the DTH service, nor on the DTH service, nor on the person entertained; that the incidence of tax would fall on the ultimate subscriber; tax may have to be collected by the DTH service provider and paid to the Government. These are matters concerning the in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n reported in Kesoram Industries Ltd. (supra), pointed out as follows: 106. The judicial opinion of binding authority flowing from several pronouncements of this Court has settled these principles: (i) in interpreting a taxing statute, equitable considerations are entirely out of place. Taxing statutes cannot be interpreted on any presumption or assumption. A taxing statute has to be interpreted in the light of what is clearly expressed; it cannot imply anything which is not expressed; it cannot import provisions in the statute so as to supply any deficiency; (ii) before taxing any person it must be shown that he falls within the ambit of the charging section by clear words used in the section; and (iii) if the words are ambiguous and open to two interpretations, the benefit of interpretation is given to the subject. There is nothing unjust in the taxpayer escaping if the letter of the law fails to catch him on account of the legislature's failure to express itself clearly. (See Justice G.P. Singh, ibid., pp. 638-39.) 158. The defect in the said Section in not providing for the taxable event and on whom the incidence of tax falls, certainly makes Section 4-I an incomple ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be provided to a client by broadcasting agency or client or organisation in relation to broadcasting in any manner. The measure of taxation therein is the gross amount charged by the service provider. There is no dispute on the fact that the competency to legislate flows from Articles 245 and 246 of the Constitution of India. 162. DTH service has two aspects, one is providing of service and the other is providing of entertainment. We have seen in the preceding paragraphs that the levy of service tax as well as entertainment tax can co-exist and both are mutually exclusive, taxable under Entry 92 C List I and Entry 62 List II of VII Schedule to the Constitution of India respectively. 163. With all the distinct legislative field of activities, we may have to see what Section 4-I seeks to tax, particularly in the context of the absence of a taxable event specified. 164. A reading of Section 4-I of the Act shows that what is sought to be taxed herein appears to be a tax essentially on the amount collected by the provider of the DTH services. The definition of DTH services shows that it is a distribution of multi-channel television programme by providing television signals ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... distinct from each other for a differential treatment. Given the fact that the subscriber of Cable TV and DTH derive the same entertainment content from one source, a distribution through satellite and analog system does not change the content of entertainment. Thus, the object of the Act being to tax entertainment , there could be no legal base for a classification, as has been done under the impugned provision. The number of channels provided and the technical refinement in telecasting, however matters very little while considering the subject matter of taxation, viz., entertainment. Referring to the tariff notification of Telecom Regulatory Authority of India, he pointed out that given the similarity in the content of entertainment offered, TRAI has not made any such distinction in the matter of tariff fixation too. Thus, with all attributes of entertainment in cable TV being there in DTH, the claim of the State based on technical difference fails to take note of this fundamental aspect in bringing the amendment to charge the entertainment. Thus, even assuming that the Section could stand as it is, it fails to satisfy the test of Article 14 of the Constitution. Touching on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ayanan (supra), Drive-in-Enterprises (supra) and pointed out that the consistent view of the Court is that the State, undoubtedly, enjoys a greater latitude in the matter of taxing statute. However, the classification in arbitrary rate and the extent of reasonableness lie in showing a nexus with the object sought to be achieved. He also referred to the decisions reported in Federation of Hotel Restaurant Association of India (supra), Express Hotels (P.) Ltd. (supra) and Elel Hotels and Investments Ltd. (supra), only to point out the reasoning of the Supreme Court in upholding the classification, the nexus between those classifications and object sought to be achieved, vis-a-vis the object of the Act. 168. Learned senior counsel appearing for the State submits that the differential treatment made by treating DTH as a class, is based on the principle of ability and capacity to pay. Referring to the comparative study made, of the cable TV and DTH, as discussed in the counter, learned senior counsel pointed out that going by the decisions of the Apex Court laying down the law that tax enactments are not immune from the challenge made based on Article 14, referred to the Competitio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... classification made thus has nexus with the object, it being to raise money for use by the State. Judging by the socio-economic aspect too in providing an employment to many a person, cable TV stands apart from DTH. Cable TV is operated by small investors and small business houses and does not require huge investment. 170. Referring to the decisions reported in State of Bombay v. United Motors (India) Ltd. AIR 1953 SC 252 at paragaraph 29 and British India Corpn. Ltd. v. Collector of Central Excise AIR 1963 SC 104 at paragraphs 11 and 12, he submitted that the legislature has the authority to make law for a definite class, taking into consideration the ability and capacity to pay tax. Thus, classification has been recognised as a legally permissible method. 171. In this connection, he referred to the decisions reported in Bhagatram Rajeevkumar v. CST [1995] Supp. (1) SCC 673; Real Food Products Ltd. v. Andhra Pradesh State Electricity Board [1995] 3 SCC 295 at paras 7 9 and at Paras 24 and 27; State of Jharkhand v. Tata Cummins Ltd. [2006] 4 SCC 57 at para 16; Mohan Das N.Hegde v. State of Karnataka [2005] 4 SCC 64 at para 6; Shivananjundappa v. State of Karnataka AIR 1992 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt. 175. The question raised based on Article 14 herein with reference to the levy of the entertainment tax demands a treatment a little different from how the challenge based on Article 14 was considered by the Apex Court in matters falling under tax enactments referring to Entries other than Entry 62 List II of VII Schedule to the Constitution of India. Three decisions of the Apex Court, in this context, need to be seen: (i) Spences Hotel Pvt. Ltd. v. State of West Bengal [1991] 2 SCC 154, (ii) Godfrey Phillips (I) Ltd. (supra) (iii) Aashirwad Films (supra). 176. While considering the above guidelines generally taken as the guiding principles in the matter of considering the challenge raised based on Article 14, in the decision reported in Spences Hotel (P.) Ltd. (supra), the Supreme Court laid down the finer nuances involved in considering the challenge based on Article 14. It pointed out Taxation will not be discriminatory if, within the sphere of its operation, it affects alike all persons similarly situated. Thus, whether a particular tax is discriminatory or not must necessarily be considered in light of the nature and incidence of that particular tax and c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thin the group was not considered necessary by the legislature, which has the wide latitude in the matter of classification. Thus when the statute divides the objects of tax into groups or categories, so long as there is equality and uniformity within each group, the tax cannot be attacked as violative of Article 14 of the Constitution of India. 177. The above-said decision thus brings out the distinct principle that in the matter of considering the challenge under Article 14 of the Constitution of India on taxation laws, the issue has to be considered from different angles in different kinds of taxes and from the nature and incidence of that particular tax. Once classification is made within the group, there could be no further classification. Where tax is on the mere provision of an aspect or activity, the different instrumentalities of providing the aspect, which is the taxable event, cannot provide a basis for classification. Thus what is true of Luxury tax is true of entertainment tax too. 178. Although we have already referred to the decision reported in Godfrey Phillips India Ltd. (supra) in the preceding paragraphs with reference to the content of Entry 62 List II of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le or export or import as the case may be, tax levied on goods is with reference to the taxable event. In none of the cases could it be validly stated that the excise duty or sales tax is directly on goods as a taxable event. The taxable event is within the incidence of tax on goods and that the taxable event is not shifted directly on the goods or persons merely by reason of a classification made. Thus wherever challenge was made as regards the classification of goods and persons with reference to sales tax or other revenue laws, this Court had upheld the classification, it having nexus to the taxable event. Under every one of the above categories, goods or article is taxed only with reference to the taxable event. In the decision reported in A. Suresh (supra), on the charge under Section 4-E of the Act, the Apex Court rejected the plea of the petitioner therein, having regard to the distinct character of the entertainment offered by Cable TV, which is totally different from the form of entertainment given by the cinematographic exhibition. 182. The decision reported in Aashirwad Films (supra), cited by the petitioners in W.P.Nos.25986, 25987, 28978 and 28979 of 2011, is yet an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntion to achieve an avowed object envisaged under Part IV of the Constitution of India. 183. Thus, viewed in the context of the decisions cited above, in particular, the decision reported in Godfrey Philips India Ltd. (supra), the decision on Entry 62 List II of VII Schedule to the Constitution of India, we have no hesitation in holding that the levy suffers from arbitrariness in classifying DTH as a separate class from Section 4-E - Cable TV, for adopting different rate of tax. Apart from there being no reasonableness as to the different rate adopted under Section 4-I from Section 4-E, the classification made fails to show the nexus with the object of taxation, namely, to levy tax on entertainment. 184. As already seen in the preceding paragraphs, both Sections 4-E and 4-I of the Act start with the same non-obstante clause as referring to Sections 4 and 7 of the Act. Section 4-I does not exclude Section 4-E for the reasons best known to the legislature. Thus the event and object of taxation remaining one and the same both under Sections 4-E and 4-I namely, entertainment and entertainments other than entertainment through cinematographic film, the discrimination made just on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted out in the decision reported in Aashirwad Films (supra), the classification becomes ex facie arbitrary. The chargeable event in each one of these classifications is the entertainment content. 186. Rightly, as far as cinematographic exhibition is concerned, we have a charging Section under Section 4 Tax on payment for admission to entertainments; Section 4-D Tax on cinematograph film exhibited on Television Screen through Video Cassette Recorder or through Cable Television Network; Section 4-E Tax on television exhibition; Section 4-F Tax on amusement; Section 4-G Tax on recreation parlour; Section 4-H Tax on dubbed film; Section 4-I Tax on direct to home service and Section 4-J Tax on Cricket Tournament conducted by Indian Premier League (IPL). As far as DTH is concerned, the distinction that is sought to be explained by the State was only a technological difference in the delivery system. While cable TV programmes reach the person entertained through analog system linked by metallic co-axial cable or optic fibre cable to a central system called head-end, in DTH service, the subscribers receive the content by using an antenna, receiving the signals through the satellite sy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... films, was considered by this Court in the unreported decision dated 30.11.1994 in the case of Tamil Nadu Cable T.V. Organisers (supra) in W.Ps.Nos.16237, 16517 and 16272 of 1994 etc.), and affirmed by the Apex Court in the decision reported in A. Suresh (supra). So too Section 4-D - Tax on Cinematograph films exhibited on Television Screen through Video Cassette Recorder or through Cable Television Network, stands as a class by itself. But, in the matter of classification, we do not find any of those principles laid down by the Apex Court on Article 14 of the Constitution of India would come to the rescue of the State, treating DTH as a class by itself to be treated differently from cable TV. In the circumstances, we have no hesitation in upholding the contention of the petitioners that the classification fails the test of Article 14 of the Constitution of India. 190. Learned Senior Counsel appearing for the State sought to support this differential rate between Cable TV and DTH on the ground of Cable TV run mostly by self-employed persons and DTH by the corporate entities and that the reach of Cable TV is much more to cater to distant remote villages. Given the fact that diss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ressable systems) Tariff (first amendment) Order, 2012, amending the definitions of addressable system, cable operator, multi system operator, pay channel and the tariff be paid thereon. Clause 6 of the principal Tariff Order also underwent changes. 193. In considering whether the DTH differs from the cable television, Mr. C. Natarajan, learned senior counsel, referred to the Telecom Regulatory Authority of India Act, 1997 and the Telecommunications (Broadcasting and Cable services) Interconnection Rules, issued under Sections 36 and 11 of the Telecom Regulatory Authority of India Act, 1997, Telecommunications (Broadcasting and Cable services) (Addressable System ) Tariff order, 2004 and the subsequent Tariff Orders in 2007, 2008, 2010 and 2012, to highlight the treatment of cable network and DTH services at par, both as regards the regulation and tariff fixation. He also referred to the Government of India Ordinance on 25.10.2011 called The Cable Television Networks (Regulation) Amendment Ordinance, 2011, the object being to ensure migration of the services to addressable system to ensure quality transmission as well as optional choice of channels at reasonable price to the con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also shows the contemplation of complete digitalisation with addressability in the Cable TV network with a rate card for its purpose. In this context, it felt that setting a retail tariff for set top boxes is not necessary. 198. On 5th August, 2010, the Telecom Regulatory Authority of India brought out a framework of implementation of Digital Addressable Cable TV Systems in India by December, 2013. The Authority thus recommended that for implementing the sunset date for Analog Cable TV services, the Cable Television Networks (Regulation) Amendment Act, 2002, be suitably amended and that the migration to a digital addressable cable TV system be implemented with sunset date for analog cable TV Services as 31st December, 2013 in four phases starting from four metros to other places. 199. The pricing of the services thus shows that cable TV operators and DTH operators are on level playing field and the tariff rate is one and the same. In fixing this tariff, the consumers' interest has been taken as of paramount importance. 200. The affidavit filed by the Writ Petitioners in W.P.Nos.25986, 25987, 28978 and 28979 of 2011 details the tariff structure under order dated 26.12.2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... son of the nature of services offered, being one and the same. 202. A reading of the documents in this regard, thus establishes that as far as the Telecommunication (Broadcasting and cable) Services Interconnection Regulation Act as well as the Tariff Order issued by the Telecom Regulatory Authority of India are concerned, no discrimination is made between Cable TV and DTH. 203. Considering the parity maintained in the tariff, when one looks at the counter affidavit filed in support of the differential treatment is concerned, the emphasis given therein for such a discrimination was the viewers' interest. Given the fact that the content of providing of the service remaining one and the same, one does not find any substance or logic in the contention of the respondent that there is no discrimination or violation of Article 14 while treating DTH differently. 204. The contention of the respondents on the aspect of discrimination fails on the strength of its own contention. The parameters as regards the consideration of the issue on Article 14, particularly in a taxing statute, has been referred to in the preceding paragraph and does not require reiteration once again. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The present provisions under Section 4-I of the Act now seeks to treat DTH as a class by itself distinct from Cable TV. Admittedly, the entertainment through DTH is received through satellite; that the petitioners herein, who are limited companies, are awarded licence by the Government of India under Section 4 of the Indian Telegraph Act, 1885 and the Indian Wireless Telegraph Act, 1993, for providing DTH services. 205. A reading of the Ordinance and the Notification thereon shows the efforts taken to digitalize all metros by December 2012, so that analog service through cable TV is taken over by this digitalisation. It is further seen that such a move was taken to put an end to the persisting complaint against analog system; that there was no account maintained/available as to the subscribers' strength, which ultimately led to loss of service tax revenue to the State. Thus in all these efforts, all the stakeholders' interests were taken note of and there was a consultative process undertaken by the concerned Authorities with all the stakeholders. The tariff order dated 26.12.2008 recognised a minimum of ₹ 82/- per subscriber per month, as tariff for 30 free air c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e subscribers' premises. The TV signals transmitted from the Broadcasting Centres are in encrypted format. They are decrypted/decoded by the set top box with the help of the viewing card inside the set top box for the customers to be able to view the service. To receive the entertainment through satellite, the subscribers have to pay monthly charges. Apart from the free channels, based on the choice of the channels selected by the subscriber, subscription charges are calculated. The connection is a pre-paid service and the subscriber is required to purchase recharge vouchers for the choice of channels. This is a convenient mode of payment. As far as the entertainment received through cable television is concerned, the cable TV operator receives the signals through his dish antenna and transmits the same to the subscribers through cable. As far as the entertainment aspect is concerned, neither the cable TV operator can control, edit, modify the content, nor the DTH operator can. The content in both the system are one and the same. 209. A reading of Section 4-I of the Act shows that notwithstanding anything contained in Sections 4 and 7 of the Act, there shall be levied and pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nces Hotel (P.) Ltd. (supra) clearly points out that the question as to whether a particular tax is discriminatory or not must necessarily be considered in the light of the nature and incidence of the particular tax and cannot be judged by what has been held in the context of other taxes. The ability or capacity to pay, no doubt, has been regarded as a test in determining the justness or equality of taxation, but then, that, by itself, cannot justify the differentiation of the classification. As pointed out by the Apex Court, what exactly is meant by equality in taxation has to be looked at from a different angle in different kinds of taxes levied under different contexts. Heavy reliance was placed by the State on the decisions of the Apex Court reported in Federation of Hotel Restaurant Association of India (supra) Express Hotels (P.) Ltd. (supra), Elel Hotels Investments Ltd. (supra), East India Hotels (supra). 211. As far as the decision reported in Federation of Hotel Restaurant Association of India (supra) is concerned, the Apex Court considered the validity of the provisions of the Expenditure Act of 1987 and with reference to the competency of the Parliament to legi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ries in the entry refers to activities of indulgence, enjoyment or pleasure in that which is costly or which is generally recognised as being beyond the necessary requirements of an average member of society and not articles of luxury. Since the Act challenged before the Supreme Court sought to tax goods described as luxury goods and not any activity, the said Act must be declared to be legislatively incompetent. 215. Therefore, in understanding the challenge on Article 14 of the Constitution of India, one must keep in the background the law declared by the Apex Court in the decision reported in Spences Hotel (P.) Ltd. (supra). 216. Thus on a reading of the provision relating to Section 4-E and Section 4-I of the Act, the only difference that one can see between cable TV and DTH is that while television exhibition goes through transmission of television signals by wire, where the subscriber's television sets are linked with metallic coaxial cable or optical fibre cable to a central System, DTH, as its name suggests, goes by a direct to home delivery with the aid of an antenna, through which the signals are decoded and encrypted for the viewer to enjoy the entertainment. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cumstanced have been treated unequally and vice versa. However, in Khandige Sham Bhat v. Agricultural Income Tax Officer [1963] 3 SCR 809 at p. 817 it was observed: If there is equality and uniformity within each group, the law will not be condemned as discriminative, though due to some fortuitous circumstance arising out of a peculiar situation some included in a class get an advantage over others, so long as they are not singled out for special treatment. Taxation law is not an exception to this doctrine: vide Purshottam Govindji Malai v. Shree B.N. Desai, Additional Collector of Bombay [1955] 2 SCR 887 and Kunnathat Thatunni Moopil Nair v. State of Kerala [1961] 3 SCR 77. But in the application of the principles, the courts, in view of the inherent complexity of fiscal adjustment of diverse elements, permit a larger discretion to the Legislature in the matter of classification, so long it adheres to the fundamental principles underlying the said doctrine. The power of the Legislature to classify is of wide range and flexibility so that it can adjust its system of taxation in all proper and reasonable ways. 219. We are conscious of the decisions of the other High Courts, pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Madhya Pradesh High Court vide Tata Sky Ltd. (supra) is concerned, the issue raised therein is also similar to what had been raised before the other High Courts and the upholding of the charging provision was based on the wordings of the Section of the State enactment. 225. We hold, in principle, that there could be a levy of entertainment tax on entertainment received through DTH services and the pith and substance of the levy contemplated under Entry 62 List II of VII Schedule to the Constitution of India is a levy on entertainment and is different from the service tax levy on providing of service. As had been done in other High Court, following those decisions and the decisions of the Apex Court, we reject the case of the petitioners based on aspect theory as to the levy of entertainments tax on DTH, which already suffers service tax. We have also upheld the levy of tax on DTH and thereby rejected the petitioners' interpretation placed on Entry 62 List II of VII Schedule to the Constitution of India, as referable to public entertainment only and not to an entertainment through DTH, which the petitioners called as private entertainment. 226. We, however, accept the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itution. Hence, even though we have held that by reason of the imperfections pointed out as to the absence of chargeable event not being specified in explicit, unambiguous and clear terms in Section 4-I, the charge cannot be effectuated, yet, on the grounds of violation of Article 14 and the imperfection in the Section creating the impression as though the charge is in the nature of service tax and hence, colourable in character, we have no hesitation in declaring the provision as unconstitutional. 228. In the light of the decision thus arrived at, we do not find there is no any necessity to go in detail on the petitioners' contention based on Arasu Cable TV. We may point out that similar such contention was rejected by the Apex Court in the decision reported in A. Suresh (supra). On other grounds, we have distinguished the said case. As regards the contention of a private individual, who is the second petitioner in W.P.Nos.25986 and 25987 of 2011, when the consistent case of the main petitioner in the said writ petition is that the content in cable TV and DTH is one and the same, we do not find any merit in the contention of the second petitioner that the rate for DTH would ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2011 is also filed by M/s.Bharati Telemedia Limited seeking to declare Section 65(105)(zzzx) of the Finance Act, 1994 as ultra vires Entry 62 List II of Seventh Schedule to the Constitution of India and Articles 14, 19(1)(g) and 245 of the Constitution of India. 235. W.P.No.25872 of 2011 is filed by M/s.Bharat Business Channel seeking to declare Section 65 (105)(zk) read with Section 65(15) and Section 65(16) of the Finance Act, 1994 insofar as it relates to the provisions of Direct To- Home Service as being ultra vires and violative of Articles 14, 19, 246 (read with Entry 62 List II of Seventh Schedule to the Constitution of India of List II of Schedule VII) and 265 of the Constitution of India, and thereby as being null and void insofar as the petitioner is concerned. 236. The Union of India filed a counter affidavit in W.P.Nos.25986, 25987, 25872, 25873, 25927 to 25929, 28978 and 28979 of 2011 supporting the levy of service tax on DTH services. The Union of India states that the entertainment tax levy imposed by the State Government and service tax levy imposed under the Finance Act of 1994 fall under two different categories and it is incorrect to state that the same act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the said service by any name called. It is argued that the State legislature cannot, in the guise of imposing a tax on entertainments, in exercise of its powers under Entry 62 of List II of the VIIth Schedule to the Constitution, impose a tax on the DTH service. Consequently, it was submitted that the said Act, to the extent it attempts at encompassing DTH services within the ambit of entertainment tax, is unconstitutional. It is further argued on behalf of the petitioners that the taxable event for the levy of service tax is exactly the same as the taxable event for the levy of entertainment tax, which is, the provision of DTH service by transmitting DTH signals. And, therefore, there is a clear trespass into Parliament's exclusive domain. Mr Varun Sarin, appearing for Dish TV India Ltd, adopted the arguments of Mr Ganesh and Mr Lekhi. 239. The provisions challenged before the Delhi High Court were Sections 2(a), 2(aa), 2(m)(vi), 7(1), 8(2) of the Delhi Entertainments and Betting Tax Act, 1996 and Rules 12A, 26A, 31, as amended by the Delhi Entertainments and Betting Tax (Amendment) Rules, 2010. 240. Analysing the tax in question under the the Delhi Entertainments and B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r conceded that being a subject falling under Entry 62 List II of VII Schedule to the Constitution of India to tax entertainment, the exclusive power to tax entertainment rested with the State, and the Centre cannot levy service tax. As already seen from the extract from the judgment of the Delhi High Court, the petitioner conceded about its liability to service tax and all that it challenged was the levy of entertainment tax under the Delhi Entertainments and Betting Tax Act. 242. A reading of the affidavits filed in the Writ Petitions before this Court dated 7.11.2011 and 5.11.2011 respectively, shows that there is no reference at all to the Writ Petition filed in Delhi High Court and the position conceded therein. The batch of cases were initially posted before two other Benches before it was posted before us and we are informed that the case was taken up for hearing and later on adjourned. 243. It may be seen that when the Writ Petition was heard by this Court on 17.8.2012, admittedly, the petitioner did not make any reference at all to the Delhi High Court decision. It was only when learned Standing Counsel appearing for the Union referred to the decision of the Delhi Hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2012 before the Delhi High Court, challenging the levy of service tax, was rejected by the Delhi High Court, by order dated 20th July, 2012, by referring to the earlier decision of the Delhi High Court as to the sustainability of service tax as well as entertainment tax and the decision of the Delhi High Court on the Delhi Entertainments and Betting Tax Act was challenged before the Supreme Court in Civil Appeal No.2147 of 2012 and the same is pending. 246. A reading of the affidavit of the first Writ Petition filed before the Delhi High Court, dated 19.3.2010, challenging the levy of entertainment tax, reveals that the grounds were confined to entertainment tax only. The prayer in the writ petition was for Writ of Mandamus to declare the provisions of Section 2(a) and 2(aa), 2(m) (vi), Section 7(1) and Section 8(2) of the Delhi Entertainments and Betting Tax Act, 1996 and Rules 12A, 26A and 31 of the Delhi Entertainments and Betting Tax, (Amendment) Rules, 2010 enacted to include DTH services under the ambit of the Act as unconstitutional and ultra vires the Constitution of India. The grounds raised before the Delhi High Court from A to X, reveal that the challenge is only on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns of the Delhi Entertainments and Betting Tax Act. The petitioner states that even though the service tax levy was not the issue before the Delhi High Court and the petitioners were not heard on the issue whether service tax can be leviable when the entertainment tax is also levied, the Delhi High Court held that service tax is also leviable on the DTH. The petitioner takes the contention that service tax cannot be levied on DTH services, as the same is, in pith and substance, a tax on entertainment and covered exclusively under Entry 62 List II of VII Schedule to the Constitution of India. The transmission signals cannot be segregated into a service and an entertainment, and aspect theory has no application to the facts of the case. Thus the Writ Petitioner challenged the levy of service tax under Section 65(105)(zk) of the Finance Act, 1994. In paragraph 18 of the grounds, the petitioner made a reference to the challenge on the levy of entertainment tax before the Karnataka High Court and in the alternative, also challenged the levy of service tax. 249. As far as the contention before the Delhi High Court in the second writ petition is concerned, applying the earlier decision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... point of time before different Courts. Even though learned senior counsel appearing for the petitioners pointed out that the petitioners had, in fact, taken the question of levy of service in the first round of litigation itself, the observation of the Delhi High Court as to the admitted case of the petitioners that service tax is leviable, as recorded by the Delhi High Court may not be correct, we are not prepared to accept this plea when admittedly the petitioners had not taken any steps to set the record right. 251. We may point out herein that there are other Writ Petitioners, who had also filed Writ Petitions before other High Courts, challenging the levy of entertainment tax under the respective State enactments. We have also dealt with the same in the preceding paragraphs about the difference in the language between the Tamil Nadu Act and the other State Acts. But on the width of Entry 62 List II of VII Schedule to the Constitution of India, the contentions taken by those petitioners before this Court are on the same lines of the contention taken before the other High Courts and hence, there could be no serious cause or concern to voice about. 252. In this background o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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