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2015 (9) TMI 779 - HC - VAT and Sales TaxConstitutional validity of levy of entertainment tax on the Direct To Home (DTH) Broad Casting Services - legislative competence of the State - Gujarat Entertainment Tax (Amendment) Act, 2009 - Held that:- Applying the ratio of the law laid down by the Hon'ble Supreme Court in the case of Purvi Communication (P) Ltd. and Ors. [2005 (3) TMI 438 - SUPREME COURT OF INDIA] to the facts of the case on hand, providing Direct-To-Home (DTH) Broadcasting Service in the aid of set top box would certainly fall within the meaning of "entertainment", the provisions contained in Section 2(j)(iiia) read with section 6E of the Act. A plain reading of the said provision makes it clear that the tax or levy is on the receipt of "entertainment" i.e. the receipt of radio frequency signals for exhibition of films or moving pictures or series of pictures with the aid of a set top box or any other apparatus attached to it for securing the transmission through DTH Broadcasting services. The contention on behalf of the petitioners that the State cannot impose entertainment tax on DTH services, the field having been occupied by the Entry 97 read with Entry 31 of List I of the Constitution of India cannot be accepted. Regarding double taxation on the same transaction - Held that:- There seems to be some misconception on the part of the petitioners to assume that there is only one event involved in the present case i.e. the Direct-To-Home (DTH) Broadcasting Service. It is the "entertainment" derived from the content that is the subject matter of tax - entertain tax under the Act and not the service of enabling the flow of content to Direct-To-Home (DTH) system. In a given case two concepts may be intertwined, the strands can easily be separated by employing the Aspect Theory and in respect of the service aspect, the taxable event is entertainment from the content. The ration of the decision in the case of Bharat Sanchar Nigam Limited [2006 (3) TMI 1 - Supreme court], shall not be applicable in the context of "entertainment" and "service", which are present in the instant case. While applying the "Aspect Theory" in the present case, the subjects which in one aspect and for one purpose fall within the powers of a particular Legislature, may in another aspect and for another purpose, fall within another legislative power. Thus, the decision of the Hon'ble Supreme Court in the case of Bharat Sanchar Nigam Ltd. [2006 (3) TMI 1 - Supreme court] would have no applicability of whatsoever nature. Challenge to Gujarat Entertainment Tax (Exhibition by means of Direct-To-Home (DTH) Broadcasting Service) Rules, 2010 particularly Rules 3, 4, 5, 6, 7, 11, 12, 13, 14 and 16 and levy of entertainment tax on Direct-To-Home (DTH) Broadcasting services fail. - Decided against the assessee.
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