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2017 (4) TMI 3 - HC - Indian LawsLiability of petitioner to pay entertainment tax in respect of 49012 STBs operated through its cable service control room - Held that:- By virtue of second proviso to section 3(1) of the Act of 1979, the liability to pay entertainment tax in respect of admission to entertainment offered through a multi system operator would be upon the proprietor of the cable service control room/multi system operator and it is immaterial whether he collects it directly from subscriber or indirectly through an associate or franchisee cable operator or an agent, who collects it from the person making the payment. In the absence of factual foundation laid, showing the particulars of the cable operator or that such cable operator was not an associate/franchise or agent, the liability to pay tax cannot be resisted by the petitioner under the Act. The Act of 1979 has been enacted by the state legislature invoking its authority under Entry 62 of list 2, and the IInd proviso to Section 3(I), which makes the proprietor of multi system operator liable to pay tax, is within the legislative competence of State and is otherwise not questioned. No provision could be shown in the West Bengal Act or the Delhi Act, similar to the one contained in the second proviso to Section 3(1) of the Act of 1979. It clearly holds the proprietor of multi system operator liable to pay entertainment tax, as has already been discussed above. As such, the challenge laid to the impugned orders on the ground that the petitioner is not liable to pay tax, in the facts of the present case, fails. So far as the second aspect of dispute raised i.e. role of subscription received by the petitioner, find that the petitioner has clearly disputed it before the assessing authority and also in appeal. Petitioner's consistent case was that it had received subscription at the rate of ₹ 100 and not ₹ 150 as claimed by the department. The appellate authority has noticed this contention, but has not dealt with it. Learned Standing Counsel has not able to show any consideration on this aspect of the matter in the appellate order. In such circumstances, on this limited aspect the matter is liable to be remitted back to the appellate authority for a fresh consideration of cause. In view of the discussions aforesaid, the writ petition succeeds and is allowed in part. The liability of petitioner to pay entertainment tax in respect of 49012 STBs operated through its cable service control room is upheld. However, the matter with regard to determination of rate of subscription is remitted back to the appellate authority for consideration of petitioner's objection in that regard.
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