TMI Blog2015 (2) TMI 1043X X X X Extracts X X X X X X X X Extracts X X X X ..... on that the impugned legislation impinges on the field occupied by the Central legislation. The aforesaid Central legislation has been enacted to regulate the operation of cable television network in the country and matters connected therewith or incidental thereto whereas the State legislation is for levy of entertainment tax on entertainment within the legislative field exclusively assigned to the State Legislature under entry 62 of List II of the Seventh Schedule to the Constitution. Thus the objects sought to be achieved by two different Acts enacted under two different legislative fields exclusively assigned to the respective Legislatures are entirely distinct and separate. The Cable Television Networks (Regulation) Act, 1995 of the Union Legislature does not denude the State Legislature for levying entertainment tax on entertainment. In this context, it is important to refer to the case of Express Hotels Private Ltd. [1989 (5) TMI 52 - SUPREME Court] in which the Constitution Bench had dealt elaborately with Western India Theatres Ltd. [1959 (1) TMI 23 - SUPREME COURT]. In the said case, with reference to entry 50 in Schedule VII of the Government of India Act, 1935, which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... two aspects/spheres/profession on the one hand and service on the other hand, was considered by the honourable Supreme Court in the All India Federation of Tax Practitioners [2007 (8) TMI 1 - Supreme Court].The honourable Supreme Court drew distinction between the two aspects/spheres, i.e., profession on the one hand and service on the other hand and upheld the levy of service tax on chartered accountants or cost accountants. The validity of the levy of entertainment tax on DTH providers by the State of Uttarakhand was challenged before the High Court of Uttarakhand. Referring to the distinction drawn by the apex court between the two aspects/spheres, i.e., profession on one hand and service on the other hand in All India Federation of Tax Practitioners [2007 (8) TMI 1 - Supreme Court] and treating the similar distinction between the two aspects/spheres on DTH broadcasting service, i.e., service on the one hand and entertainment on the other hand, the Uttarakhand High Court held. We fully agree with the view taken by the Uttarakhand High Court and we hold that there are two different aspects/spheres of "direct-to-home" (DTH). One is broadcasting service, for which service tax ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n "broadcasting service" which falls under entry 92C of List I of the Seventh Schedule to the Constitution of India. Entry 62 of State List and entry 92C of the Union List operate in two different spheres. There is no transgression or encroachment upon the field of Union legislation and the levy of tax on "entertainment" through direct-to-home (DTH) by the State Legislature is not ultra vires the power of the State Legislature provided under entry 62 of List II of the Seventh Schedule to the Constitution of India. In view of the fine distinction between direct-to-home service and cable T. V., levy of "entertainment tax" at the rate of 10 per cent. on direct-to-home (DTH) service vis-a-vis 7.5 per cent. on the "entertainment" through cable TV, is not discriminatory. Applying the R. M. D. Chamarbaugwalla [1957 (4) TMI 56 - SUPREME COURT] the principle of severability, section 2(s)(v) read with section 2(aj)(ii) of Jharkhand Entertainment Tax Act shall not include the cost of set top box or any other instrument or equipment of like nature to levy entertainment tax. The impugned demand notices issued to the writ petitioners are in consonance with the provisions of the Jhark ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hin one month from the end of that financial year. Pursuant to the fulfilment of the eligibility conditions, as per guidelines for uplinking from India notified on December 2, 2005, the petitioner has also been granted permission on non-exclusive basis for a period of ten years to establish, maintain and operate an uplinking hub. 4. The petitioner launched its services throughout India from August, 2006. The petitioner has established transponders which downlink signals of various channels and uplink them, the DTH apparatus installed at the subscribers premises cumulatively decode the transmissions and therefore, lets the end consumer access various channels providing sounds and images without the presence of an intermediary like cable TV operators. The petitioner has the broadcasting centre at Chhatarpur, Delhi, which downlinks the signals from satellite and then uplinks to the designated transponders for transmission of signals in Ku-band. These signals are received by the dish antenna installed at the subscriber's premises. The TV signals transmitted from the broadcasting centre at Chhatarpur are in encrypted format and are then decrypted/decoded by set top box and the vi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble to entry 92C of List I of the Seventh Schedule to the Constitution of India and was thus, beyond the competence of the State Legislature. The case of the petitioners is that the same does not fall under entry 62 of List II of the Seventh Schedule providing for the levy of entertainment tax . The activities carried out by the petitioners are covered by taxable service under section 65(105)(zk) of the Finance Act, 1994, as amended by the Finance Act, 2001, providing for levy of service tax on service rendered by a broadcasting agency in relation to broadcasting. The case of the petitioners is that the levy of entertainment tax under the Jharkhand Entertainment Tax Act, 2012 is in pith and substance, a tax on the provision of service which is levied by the Government of India and the Act encroaches upon the power of Union of India to levy service tax on a provider of DTH signals and is therefore, unconstitutional and liable to be held as ultra vires the Constitution of India. Writ petitioners are also, inter alia, challenging the levy of entertainment tax on DTH at the rate of 10 per cent. as discriminatory and also on other grounds. 8. We have heard Sri Binod Kanth an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a vires the Constitution of India to the extent of the levy of entertainment tax on direct-to-home (DTH). 11. The learned counsel for the petitioner Mr. Indrajit Sinha also reiterated the same submissions. 12. It is the submission of the learned counsel for the respondents that the Jharkhand Entertainment Tax Act, 2012 does not, in any manner, transgress into the subject of service for which service tax is levied under entry 92C of the Union List. Placing reliance upon number of decisions, the learned counsel submitted that the doctrine of pith and substance has to be applied to determine as to which entry the impugned legislation relates and that the court has to look at the substance of the matter. Placing reliance upon various judgments, the learned counsel submitted that the Jharkhand Entertainment Tax Act, 2012 and the Jharkhand Entertainment Tax Rules, 2013 are constitutionally valid. The learned counsel submitted that direct-to-home (DTH) service has two aspects-one is providing service and the other is providing entertainment through direct-to-home (DTH) service and the entertainment tax is levied on the entertainment part which is within the legislative compe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 46. Subject-matter of laws made by Parliament and by the Legislatures of States:- (1) Notwithstanding anything in clauses (2) and (3), Parliament has exclusive power to make laws with respect to any of the matters enumerated in List I in the Seventh Schedule (in this Constitution referred to as the 'Union List'). (2) Notwithstanding anything in clause (3), Parliament and, subject to clause (1), the Legislature of any State also, have power to make laws with respect to any of the matters enumerated in List III in the Seventh Schedule (in this Constitution referred to as the 'Concurrent List'). (3) Subject to clauses (1) and (2), the Legislature of any State has exclusive power to make laws for such State or any part thereof with respect to any of the matters enumerated in List II in the Seventh Schedule (in the Constitution referred to as the 'State List'). (4) Parliament has power to make laws with respect to any matter for any part of the territory of India not included in a State notwithstanding that such matter is a matter enumerated in the State List. Article 248. Residuary powers of legislation:- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by transmission of electro-magnetic waves through space or through cables, direct-to-home signals or by any other means to cable operator, including multi-system operator or any other person on behalf of the said agency or organization. Explanation:- For the removal of doubts, it is hereby declared that so long as the radio or television programme broadcast is received in India and intended for listening or viewing, as the case may be, by the public, such service shall be taxable service in relation to broadcasting, even if the encryption of the signals or beaming thereof through the satellite might have taken place outside India. 18. As per section 2(c) of the Prasar Bharati (Broadcasting Corporation of India) Act, 1990, broadcasting is defined as under:- 2(c). 'broadcasting' means the dissemination of any form of communication like signs, signals, writing, pictures, images and sounds of all kinds by transmission of electro-magnetic waves through space or through cables intended to be received by the general public either directly or indirectly through the medium of relay stations and all its grammatical variations and cognate expression shall be const ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le 248 of the Constitution of India assigns residuary powers of legislation exclusively to Parliament, entry 97 of List I, Schedule VII to the Constitution read with article 246(1) also lays down that Parliament has exclusive power to make laws with respect to any matter not enumerated in List II or List III, including any tax not mentioned in either of those Lists. 23. In the present case, the relevant Constitutional entries for consideration by this court are as under:- Constitutional entries:- List I of the Seventh Schedule:- Entry 31. Posts and telegraphs ; telephones, wireless, broadcasting and other like forms of communication. Entry 92C. Taxes on services. List II of the Seventh Schedule Entry 33. Theaters and dramatic performances ; cinemas subject to the provisions of entry 60 of List I ; sports, entertainments and amusements. Entry 62. Taxes on luxuries, including taxes on entertainments, amusements, betting and gambling. 24. It is well-settled that widest amplitude should be given to the language of the entries, but some of the entries in the different Lists may overlap and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ject to the non obstante clause in article 246(1). The combined effect of the different clauses contained in article 246 is no more and no less than this: that in respect of any matter falling within List I, Parliament has exclusive power of legislation. (2) The State Legislature has exclusive power to make laws for such State or any part thereof with respect to any of the matters enumerated in the List II of the Seventh Schedule and it also has the power to make laws with respect to any matters enumerated in List III. The exclusive power of the State Legislature to legislate with respect to any of the matters enumerated in List II has to be exercised subject to clause 1, i.e., the exclusive power of Parliament to legislate with respect to matters enumerated in List I. As a consequence, if there is a conflict between an entry in List I and an entry in List II which is not capable of reconciliation, the power of Parliament to legislate with respect to a matter enumerated in List II must supersede pro tanto the exercise of power of the State Legislature. (3) Both Parliament and the State Legislature have concurrent powers of legislation with respect to any of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s for the whole or any part of the territory of India, and the Legislature of a State may make laws for the whole or any part of the State. The legislative field between Parliament and the Legislature of any State is divided by article 246 of the Constitution. Parliament has exclusive power to make laws with respect to any of the matters enumerated in List I in the Seventh Schedule, called the 'Union List' subject to the said power of Parliament, the Legislature of any State has power to make laws with respect to any of the matters enumerated in List III, called the 'Concurrent List. Subject to the abovesaid two, the Legislature of any State has exclusive power to make laws with respect to any of the matters enumerated in List II, called the 'State List'. Under article 248 the exclusive power of Parliament to make laws extends to any matter not enumerated in the Concurrent List or the State List. The power of making any law imposing a tax not mentioned in the Concurrent List or the State List vests in Parliament. This is what is called the residuary power vesting in Parliament. The principles have been succinctly summarized and restated by a Bench of three learn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is whether the legislation relates to any of the entries in List I or III. If it does, no further question need be asked and Parliament's legislative competence must be upheld. Where there are three Lists containing a large number of entries, there is bound to be some overlapping among them. In such a situation the doctrine of pith and substance has to be applied to determine as to which entry does a given piece of legislation relate. Once it is so determined, any incidental trenching on the field reserved to the other Legislature is of no consequence. The court has to look at the substance of the matter. The doctrine of pith and substance is sometimes expressed in terms of ascertaining the true character of legislation. The name given by the Legislature to the legislation is immaterial. Regard must be had to the enactment as a whole, to its main objects and to the scope and effect of its provisions. Incidental and superficial encroachments are to be disregarded. (emphasis added). (6) The doctrine of occupied field applies only when there is a clash between the Union and the State Lists within an area common to both. There the doctrine of pith and substance is to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ead. Where there is the possibility of legislative overlap, courts have resolved the issue according to settled principles of construction of entries in the legislative Lists. 50. The first of such settled principles is that the legislative entries should be liberally interpreted, that none of the items in the List is to be read in a narrow or restricted sense and that each general word should be held to extend to ancillary or subsidiary matters which can fairly and reasonably be said to be comprehended in it. (United Provinces v. Mst. Atiqua Begum [1941] AIR FC 16, Western India Theatres Ltd. v. Cantonment Board [1959] Supp 2 SCR 63, 69; [1959] AIR SC 582, SCR at page 69 and Elel Hotels and Investments Ltd. v. Union of India [1989] 74 STC 146 (SC) ; [1989] 178 ITR 140 (SC)). ...... 93. Given the language of entry 62 and the legislative history we hold that entry 62 of List II does not permit the levy of tax on goods or articles. In our judgment, the word 'luxuries' in the entry refers to activities of indulgence, enjoyment or pleasure. Inasmuch as none of the impugned statutes seek to tax any activity and admittedly seek to tax goods described as luxur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en the powers of two Legislatures but also in any case where the question arises whether a legislation is covered by a particular legislative field over which the power is purported to be exercised. In other words, what is of paramount consideration is that the substance of the legislation should be examined to arrive at a correct analysis or in examining the validity of law, where two legislations are in conflict or alleged to be repugnant. 176. An apparent repugnancy upon proper examination of substance of the Act may not amount to a repugnancy in law. Determination of true nature and substance of the laws in question and even taking into consideration the extent to which such provisions can be harmonised, could resolve such a controversy and permit the laws to operate in their respective fields. The question of repugnancy arises only when both the Legislatures are competent to legislate in the same field, i.e., when both, the Union and the State laws, relate to a subject in List III (Hoechst Pharmaceuticals Ltd. v. State of Bihar [1984] 55 STC 1 (SC) ; [1984] 154 UK 64 (SC) ; [1983] 4 SCC 45). (underline supplied to add emphasis). 30. It would be appropriate by wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... istinct imposts; secondly, that the machinery of tax collection did not affect the real nature of a tax. Another principle for reconciling apparently conflicting tax entries follows from the fact that a tax has two elements: the person, thing or activity on which the tax is imposed, and the amount of the tax. The amount may be measured in many ways ; but decided cases establish a clear distinction between the subject-matter of a tax and the standard by which the amount of tax is measured. These two elements are described as the subject of a tax and the measure of a tax. In D. G. Gose and Co. (Agents) (P) Ltd. v. State of Kerala [1980] 2 SCC 410, which is considered later, the above passage was quoted with approval by the Supreme Court as stating precisely the two elements involved in almost all tax cases, namely, the subject of a tax and the measure of a tax. (emphasis in original) 74. It is necessary to examine the scheme underlying the Seventh Schedule of the Constitution. We are relieved of the need of embarking upon any maiden voyage in this direction in view of the availability of a Constitution Bench decision in M. P. V. Sundararamier and Co. v. State of Andhra Pradesh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the legislation falls within the ambit of the one or the other. Where there is a clear and irreconcilable conflict of jurisdiction between the Centre and a Provincial Legislature it is the law of the Centre that must prevail. (AIR pages 494-95, para 56) (italicised by us) ... 76. The abovesaid principles continue to hold the field and have been followed in cases after cases. 32. From the above decisions of the honourable Supreme Court on the legislative competence of the Union and the State on the taxing entries in the Union List and the State List, the following principles emerge:- The legislative entries should be broadly construed and that items in the three Lists of the Seventh Schedule to the Constitution of India are not to be read in a narrow or restricted sense and that each general word should be held to extend to ancillary or subsidiary matters. Whenever an apparent overlap has occurred, the legislative entries should be liberally interpreted and it is the duty of the court to reconcile the entries and the competing entries must be read harmoniously. The proper way to avoid a conflict would be to read the entries together and to interpret the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble to the State Legislature under entry 33 of List II. 35. The respective legislative entries 31 and 92C in List I and entry 33 and 62 of List II have been quoted hereinabove. While under entry 31 apart from other legislative fields the activity of broadcasting has been made subject of regulation by the Union enactment of Prasar Bharti Act, under entry 33, the subject of entertainment is open to the State Legislature to be regulated. Apparently the legislative fields of broadcasting and entertainment respectively both under List I and II do not appear to be overlapping upon each other. Similarly the legislative field available to the Union Legislature under entry 92C, i.e., taxes on service do not overlap with the legislative field under entry 62 relating to taxes on entertainment applicable to the State Legislature. The judgment rendered in the case of Hoechst Pharmaceuticals Ltd. v. State of Bihar [1984] 55 STC 1 (SC); [1984] 154 ITR 64 (SC); [1983] 4 SCC 45 and the Constitution Bench judgment in the case of State of West Bengal v. Kesoram Industries Ltd. reported in [2004] 266 ITR 721 (SC) ; [2004] 2 RC 298 ; [2004] 10 SCC 201 make it clear that there is no overlapping in fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce ; (l) 'Direct to Home (DTH) service provider' means any person or proprietor or agency, who provide Direct to Home (DTH) service, whether by means of 'set top boxes' or any such antenna or instruments or equipments or any other similar devices and includes the activation or renewal of such DTH service. (m) 'Entertainment' includes any exhibition, performance, amusement, game shows or sports to which persons are admitted for payment, or in the case of television exhibition with the aid of any type of antenna with a cable network attached to it or cable television network or direct-to-home (DTH) service, for which persons are required to make payment by way of contribution or subscription or installation or rent or security and connection charges or by any other charges collected in any manner whatsoever ; but does not include magic show and temporary amusement including games and rides ; For the purposes of this clause:- The expression 'exhibition' includes any exhibition by cinematograph including video exhibition or television exhibition with the aid of any type of antenna with a cable network attached to it, or ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cable network attached to it or cable television network an DTH service provider. 3. Incidence of entertainment tax.-(1) Save as provided in subsection (2), there shall be levied and paid to the State Government by an assessee ; a tax on the entertainment at the rate(s) as specified in the notification issued under this Act. . . . 4. Assessees to collect entertainment tax from persons admitted to entertainment.-Save as provided under sub-section (2) of section 3 of this Act, every assessee shall be entitled to collect, from persons admitted to the entertainment(s), an amount equal to the entertainment tax payable in respect to the valuable consideration of tickets or complimentary tickets or the sponsorship amount. 5. Payment of tax.-Subject to the provisions of this Act and such rules as may be prescribed, entertainments tax shall be payable by every assessee for the following class of entertainments- (i) for the cinematograph exhibition falling under sub-section (2) of section 3, before commencing of the week ; (ii) for the video exhibition falling under sub-section (2) of section 3 read with serial number 2 of the Schedule, before comm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 005] 3 SCC 711 is applicable in the present case. In the said case the levy of entertainment tax under the West Bengal Entertainment-cum-Amusement Tax Act, 1982 on television exhibition through cable T. V. network was under challenge. The honourable Supreme Court held that performance, film or programme shown to the viewer through cable T. V. network comes within the meaning of entertainment and comes within the legislative competence of the State Legislature under entry 62 of List II of the Seventh Schedule to the Constitution to make a law for the levy and collection of tax on such entertainment. It was held that the cable operator has a direct and proximate nexus with the entertainment and amusement provided to the viewers for the purpose of levy and collection for entertainment tax. The cable operator is a source of entertainment to the individual subscriber. Therefore, cable operators were held to be taxable persons in respect to their gross receipts under section 4(a) of the impugned Act. It was further held that tax under entry 62, List II can be imposed not only on the person spending on entertainment but also on the act of the person entertaining or subject of entertainm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prohibited by the Constitution of India. The Bengal Amusement Tax Act, 1922 and the West Bengal Entertainment and Luxuries (Hotels and Restaurants) Tax Act, 1972 are two statutes which have been enacted under the same legislative field, i.e., entry 62 of List II of the Seventh Schedule to the Constitution of India, and the two statutes apply admittedly to levy of tax on amusements, entertainments and luxuries in their respective area but the area of application of the said 1982 Act is different as would be evident from the provisions of the 1922 Act and the 1972 Act as aforesaid. The said 1982 Act was, for the first time, enacted by the State Legislature in 1982 and its area of application was initially confined to levy and collection of tax from the holders of television set or sets under section 4 of that Act. Thereafter, under section 4A of that Act, inserted by the West Bengal Taxation Laws (Second Amendment) Act, 1983, the area of its application was extended to levy and collection of tax from the holders of video cassette recorder. The purpose of sub-section (4a) of section 4A of the Act is to levy and collection of tax from any person who provide cable service directly to co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the purpose of levy and collection of tax under sub-section (4a) of section 4A of the Act have direct and close nexus with the entertainments made available to the viewer through their cable television 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 of India to make law for the levy and collection of tax on such entertainments. 38. A tax under entry 62 of List II of the 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 admittedly engaged in the business of receiving broadcast signals and the instantaneously sending or transmitting such visual or audio-visual signals by coaxial cable, to subscribers' homes through their various franchise. It ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Gujarat reported in [1989] 74 STC 157 (SC); [1989] 178 ITR 151 (SC); [1989] 3 SCC 677 in which the Constitution Bench had dealt elaborately with Western India Theatres Ltd. v. Cantonment Board, Poona Cantonment case [1959] Supp. 2 SCR 63. In the said case, with reference to entry 50 in Schedule VII of the Government of India Act, 1935, which is identical to entry 62, contention was raised that levy with respect to luxuries, entertainments or amusements can be made on person's receiving such luxuries or entertainment and that there can be no levy of tax on those who are givers or providers of such luxuries, entertainments, etc. While rejecting such a contention that it is only the receivers who can be taxed and not the giver, the learned judges observed (SCR page 69) that there can be no reason to 'differentiate between the giver and the receiver of entertainments and amusements and both may with equal propriety be made amenable to the tax'. ... 50. Therefore, there is no substance in the contention that taxable event is entertainment and there can be no tax if there is no entertainment. As held by the Constitution Bench, existence of means of providing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a satellite. DTH providers get programming from two major sources: International turnaround channels (such as HBO, CNN, STAR TV, etc.) and various local channels (Sahara TV, Doordarshan, etc.). Turnaround channels usually have a distribution center that beams their programming to a geostationary satellite. The broadcast center uses large satellite dishes to pick up these. The broadcast center is the Central hub of the system. At the broadcast center, the TV provider receives signals from various programming sources and beams a broadcast signal to the satellites in geosynchronous orbit. The broadcast center downlinks the signals from the satellite and converts all of this programming into a high quality uncompressed digital stream and then uplinks to the designated transponders for transmission of signals in Ku-band. The satellites receive the signals from the broadcast station and rebroadcast them to earth. That is once the signal is compressed and encrypted, the broadcast center beams it directly to one of its satellite. The satellite picks up that signal, amplifies it and beams it back to earth where viewers can pick it up. Dish picks up the signal from the satellite and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nders for transmission of signals in Ku-band. 45. In case of direct-to-home (DTH) broadcasting, service is on account of activity of transmission of signals which is received by the dish antenna for which service tax is levied. As per the terms and conditions of the licence agreement to establish, maintain and operate direct-to-home platform, that it involves host of services which is a value addition to the actual entertainment for which the writ petitioners are paying the service tax . The service tax paid under entry 92C of List I of the Seventh Schedule to the Constitution of India is only for those services involved in the DTH platform. In order to examine the true character of the enactment, the entire Act, its object, scope and effect is required to be gone into. If on such examination is found that the legislation is in substance on a matter assigned to the Legislature, then it must be held to be valid in its entirety, even though it might incidentally trench upon matters beyond its competence. 46. The activity of television exhibition through DTH service falls within the meaning of entertainment as defined in section 2(m) of the Act. The taxable event for levy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... element in the licence granted to the petitioners under section 4 of the Indian Telegraph Act, 1885 is one of service and not entertainment and taxing direct-to-home (DTH) broadcasting services as entertainment is ultra vires the competence of the State Legislature. It was also contended that the transaction of providing direct-to-home is one of the service and the other entertainment and since the service is a common component, it is not open to the State Legislature to separate a composite whole and segregate a part of it, describing that part to be entertainment, to levy tax thereon. 49. Mr. Poddar, learned senior counsel for the petitioners, placing reliance on the decision rendered in the case of Bharat Sanchar Nigam Ltd. v. Union of India reported in [2006] 3 VST 95 (SC); [2006] 145 STC 91 (SC); [2006] 282 ITR 273 (SC) ; [2006] 6 RC 276 ; [2006] 3 SCC 1 and submitted that considering the aspect of the licence given to the DTH providers, it is clear that it is one for providing broadcasting service and not for entertainment and integrity of such licence cannot be broken into pieces so as to levy entertainment tax by the State Legislature. 50. Mrs. Anubha Rawat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct solely on account of two aspects of the same transaction being made a subject-matter of legislation by two Legislatures falling within two fields of legislation respectively available to them. So long as the essential character of the levy is not departed from within the four comers of the particular entry, the measure of tax or the manner of levying the tax would not have any vitiating effect. 53. In the case of Federation of Hotel and Restaurant Association of India v. Union of India reported in [1989] 74 STC 102 (SC); [1989] 178 ITR 97 (SC); [1989] 3 SCC 634, the stand of the Central Government that expenditure aspect was different from luxury aspect and that expenditure aspect could be held to be excluded from luxury aspect was upheld in the said case. The appellants were engaged in hotel industry and subjected to a tax at the rate of 10 per cent ad valorem on chargeable expenditure under the Expenditure Tax Act, 1987. The said tax was levied by the Parliament by treating this aspect from entry 97 of the Union List. The appellants challenged the levy of tax contending that the levy of expenditure tax was in the nature of a tax on luxury'' contemplated under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Centre to tax, at least for the time being, only expenditure which results in such luxuries, should not be allowed to draw a curtain over the basic difference between the two categories of imposts. For instance, if the conflict alleged had been between the present State Acts and an Act of Parliament taxing expenditure incurred in the construction of theatres or the maintenance of race horse establishments or the like, there would have been no overlapping at all and the pith and substance of the central tax could well be described as 'expenditure' and not 'luxuries'. This distinction is not obliterated merely because of the circumstance that both Legislatures have chosen to attack the same area of vulnerability, one with a view to keep a check on 'luxuries' and the other with a view to curb undesirable 'expenditure'. 54. In the present case the question which is required to be determined is whether the levy of tax by the State Legislature was on the service aspect or the entertainment aspect. As has been held in the case of Federation of Hotel [1989] 74 STC 102 (SC); [1989] 178 ITR 97 (SC) ; [1989] 3 SCC 634 by the honourable apex court, if the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... charges his client for advice or for auditing of accounts. Similarly, a cost accountant charges his client for advice as well as doing the work of costing. For each transaction or contract, the chartered accountant/cost accountant renders profession based services. The activity undertaken by the chartered accountant or the cost accountant or an architect has two aspects. From the point of view of the chartered accountant/cost accountant it is an activity undertaken by him based on his performance and skill. But from the point of view of his client, the chartered accountant/cost accountant is his service-provider. It is a tax on 'services'. The activity undertaken by the chartered accountant or cost accountant is similar to a saleable or marketable commodities produced by the assessee and cleared by the assessee for home consumption under the Central Excise Act. . 56. The honourable Supreme Court drew distinction between the two aspects/spheres, i.e., profession on the one hand and service on the other hand and upheld the levy of service tax on chartered accountants or cost accountants. 57. The validity of the levy of entertainment tax on DTH providers by the State o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... yana High Court held that levy of service tax on the providing of service vide entry 97 read with entry 92C of List I and levy of entertainment tax covered by entry 62, List II of the Seventh Schedule to the Constitution of India can co-exist and can be harmonized on being different aspects. The transaction of providing broadcasting services and entertainment cannot be treated as an indivisible contract so as to include the aspect of entertainment by holding that the predominant transaction is broadcasting and not entertainment. It further observed that only when the transaction is treated as a composite one, the need for splitting up entertainment from broadcasting would arise. Referring to the aspect theory, the High Court held that tax is on entertainment aspect and the levy of service tax is on the providing of the service. 60. In Bharat Sanchar Nigam Ltd. case [2006] 3 VST 95 (SC) ; [2006] 145 60 STC 91 (SC) ; [2006] 282 ITR 273 (SC) ; [2006] 6 RC 276 ; [2006] 3 SCC 1, the question involved was whether SIM card (subscribers' identity module) provided to customers by mobile cellular telephone companies was a sale or a service or both . The honourable Supreme Court h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... verlapping does not detract from the distinctiveness of the aspects'. 61. In so far as Bharat Sanchar Nigam Ltd. case [2006] 3 VST 95 (SC) ; [2006] 145 STC 91 (SC); [2006] 282 ITR 273 (SC); [2006] 6 RC 276 ; [2006] 3 SCC 1 was concerned, as pointed out earlier, the question involved was whether sales tax could be levied on SIM card provided by the mobile cellular telephone companies. In Bharat Sanchar Nigam Ltd. case [2006] 3 VST 95 (SC) ; [2006] 145 STC 91 (SC) ; [2006] 282 ITR 273 (SC) ; [2006] 6 RC 276 ; [2006] 3 SCC 1, the honourable Supreme Court held that the sale of SIM card is merely incidental to the service being provided for mobile connection and that SIM card facilitates the identification of the subscriber. The honourable Supreme Court found that sale of SIM card being incidental to providing mobile connection and the sale being integral part, the State cannot levy sales tax. 62. Levy of tax on the entertainment provided by the DTH providers:- The Jharkhand Entertainment Tax Act, 2012 has been enacted to levy tax on entertainment including entertainment through cable TV, DTH network, etc., in the State of Jharkhand. The levy of service tax on broadca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ayment is not made at the time of entering the premises, is irrelevant. Payment made at a later stage by inserting coin is nonetheless for admission to a place of entertainment. This fee being charged in a different manner at a different stage, is in any case for providing entertainment. 64. The payment of subscription by a subscriber for viewing television exhibition through DTH broadcasting service in the confines of the consumer's residence or place therefore, is, no different payment made by a person for admission to entertainment in a different place like theater and cinema hall. The fact that the subscriber is able to view the content provided by the DTH service provider upon payment of subscription, is enough to conclude that the activity provided by the DTH provider and enjoyed by the subscriber is an entertainment which is amenable to tax by the State Legislature. 65. As discussed above, in the case of Purvi Communication P. Ltd. [2005] 65 140 STC 154 (SC) ; [2005] 4 RC 543 ; [2005] 3 SCC 711, the honourable Supreme Court held that the performance, film or programmes shown to the viewers through cable television network (cable service) as falling within the meani ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he petitioners is that entry 92C of the Union List gives exclusivity to the Parliament to levy service tax and exercise of powers under entry 92C and under section 65(105)(zk) was incorporated with effect from June 16, 2005 and therefore, the decision in Purvi Communication P. Ltd. [2005] 140 STC 154 (SC) ; [2005] 4 RC 543 ; [2005] 3 SCC 711, is not applicable to the present case of DTH operators. Learned senior counsel further submitted that the moment the writ petitioners are registered under the service tax for the service being provided, for which service tax is levied under section 65(105)(zk) and the State of Jharkhand cannot segregate the entertainment part and levy the entertainment tax. 68. We find no merit in the above contention. We have already held that there is fine distinction between the service aspect and broadcasting service and actual entertainment and the tax is imposed on the act of providing entertainment. What is being taxed by the State Legislature is only entertainment. The writ petitioners being the source of entertainment to the viewers are providing entertainment. They are directly connected with the entertainment provided to the viewers. As such the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... One can only look fairly at the language used.' Relying upon this passage Lord Upjohn said: 'Fiscal measures are not built upon any theory of taxation'. 70. The above passage was also quoted by the honourable Supreme Court in the decision rendered in the case of Commissioner of Income-tax, Madras v. Kasturi and Sons Ltd. reported in [1999] 237 ITR 24 (SC) ; [1999] 3 SCC 346. 71. Drawing our attention to page 826 of the Principles of Statutory Interpretation by Justice G. P. Singh, 13th Edition, learned senior counsel submitted that there is no presumption as to tax and nothing is to be read in, nothing is to be implied and one can only look fairly at the language used. 72. Taking us through various provisions of the Act, learned counsel for the respondents contended that the definition entertainment in section 2(m) includes definition of television exhibition through DTH service and section 2(a) clearly defines the assessee, which means a person who receives payment for entertainment(s) from any person or subscribers. Sub-sections (a), (m), (s), (v) of section 2 are clear and unambiguous defining direct-to-home (DTH) within the meaning of entertainment. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cription or installation, rent, security and connection charges or other charges collected in any manner whatsoever. 76. A combined reading of section 2(k), 2(1), 2(m) and 2(s)(v), we find that DTH service is the source of entertainment to the individual subscribers, who make payment. Dish antenna installed by DTH provider is the one who receives signals and the same is decrypted/decoded by the set top box to create visual image to entertain viewers. Viewers enjoy such performance, film or programmes offered by the DTH providers. Entertainment is not possible unless the encrypted format in the satellite is received by the dish antenna and decrypted by the set top box to create visual images and audio. Thus, DTH service providers have direct proximity and nexus with the entertainment provided by them and DTH operators are collecting subscription and other charges and thus fall within the meaning of entertainment within section 2(m). The entertainment made available to viewers through DTH falls within the meaning of section 2(m), entertainment and whatever amount is received or receivable by the writ petitioners in respect of providing such entertainment fall within the ambit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted that when there is no intendment in the charging section, there can be no presumption as to tax and in fiscal legislation a transaction cannot be taxed on the doctrine of substance of the matter. 79. The learned counsel for the respondents submitted that all the requirements of a charging section, viz., (i) taxable event, (ii) person who is to pay the tax, and (iii) rate at which the tax shall be levied, are present in the charging section and it is not necessary that all the ingredients are to be found in the same section. Taking us through the various provisions of the Act, the learned counsel submitted that there is no ambiguity in section 3 of the Act. Referring to the components which enter into the concept of the tax, the learned counsel placed reliance upon the decision rendered in the case of Govind Saran Ganga Saran v. Commissioner of Sales Tax reported in [1985] 60 STC 1 (SC); [1985] 155 ITR 144 (SC) in which the honourable Supreme Court has held as under (page 4 in 60 STC):- 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s the entertainment (section 2(m)). The person who is liable to pay the tax is the assessee within the meaning of section 2(d). DTH service providers, who provide entertainment through the transmission of signals received by dish antenna and set top box, are the taxable persons in respect of their gross receipts for providing entertainment(s). Rate of tax levied on the entertainment is specified in the Schedule of the Act. Section 3 contains the essential components which enter into the concept of tax. There is no force in the contention that the charging section (section 3) of the Jharkhand Entertainment Tax Act, 2012, is defective and ambiguous. 83. As discussed earlier, in the case of State of West Bengal v. Purvi Communication P. Ltd. [2005] 140 STC 154 (SC) ; [2005] 4 RC 543 ; [2005] 3 SCC 711, the honourable Supreme Court upheld the levy of entertainment tax on cable television by the State of West Bengal. Ratio of the decision in Purvi Communication P. Ltd. [2005] 140 STC 154 (SC); [2005] 4 RC 543 ; [2005] 3 SCC 711 upholding the levy of entertainment tax on cable operators by the West Bengal Legislature is squarely applicable. 84. At this juncture, it is perti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Jharkhand and when the writ petitioners are carrying on the business activities in the State of Jharkhand, they cannot contend that there is no territorial nexus. 87. As pointed out earlier, for the taxable service of broadcasting service and cable operators , the petitioners have obtained certificate of registration under section 69 of the Finance Act (in form ST2). In the said certificate of registration (in W. P. (T) No. 408 of 2013, annexure 2), the address of business premises of the writ petitioner in W. P. (T) No. 408 of 2013 is stated as Floor No. 8, Tower-B, Unitech World Cyber Park, Sector-39, Gurgaon, Haryana. The other business premises are situated in various States including Jharkhand. In the State of Jharkhand, address of the business premises is stated as opposite to Income-tax Building, Peppey Compound Main Road, Ranchi, Jharkhand. Similar is the case in respect of the other writ petitioners. 88. As rightly pointed out by the learned counsel for the respondents, the writ petitioners are having their business activities within the State of Jharkhand. The TV signals transmitted from the broadcasting centers in the encrypted format are received by the dish a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts legislative field by the impugned Act which purported to affect the men residing and carrying on business outside the State of Bombay. It was submitted that there was no territorial nexus between the State and the activities of the petitioners thereon are not within the State of Bombay. Observing that whether in a given case there is sufficient territorial nexus is essentially one of fact, the honourable Supreme Court held as under:- (24) . . . The doctrine of territorial nexus is well established and there is no dispute as to the principles. As enunciated by learned counsel for the petitioners, if there is a territorial nexus between the person sought to be charged and the State seeking to tax him the taxing statute may be upheld. Sufficiency of the territorial connection involves a consideration of two elements, namely, (a) the connection must be real and not illusory, and (b) the liability sought to be imposed must be pertinent to that connection. It is conceded that it is of no importance on the question of validity that the liability imposed is or may be altogether disproportionate to the territorial connection. In other words, if the connection is sufficient ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ccasioning in inter-State movement of electricity was incompetent and outside the power of the State Legislature. The judgment of A. P. High Court was challenged before the honourable Supreme Court. Upholding the judgment of A. P. High Court, the honourable Supreme Court held that no State legislation, nor any stipulation in any contract can fix the situs of sale within the State or artificially define the completion of sale in such a way as to convert an inter-State sale into an intra-State sale or create a territorial nexus to tax an inter-State sale, unless permitted by an appropriate Central legislation. 93. Much reliance was placed upon the above judgment to contend that the State of Jharkhand cannot levy entertainment tax on the transmission of signals originating from other States and downlinking of signals in broadcasting centres situated outside the State and also uplinking the signals to the designated transponders and while so, the State of Jharkhand cannot presume the transaction is completed in the State of Jharkhand so as to levy entertainment tax . 94. Reference to the judgment in the case of National Thermal Power Corporation Ltd. [2002] 127 STC 280 (SC) is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... emand notice is liable to be quashed. 97. The Jharkhand Entertainment Tax Act, 2012 was enacted and published in the Gazette on April 27, 2012 and the same was notified on May 14, 2012. Section 1(3) of the Act stipulates that the Act shall come into force on such date as the State Government may, by notification, direct. The Act itself has not been made to commence from a date prior to the passing of the Act. On the other hand, the Act was given retrospective effect from the date of enactment, i.e., April 27, 2012. Such retrospectivity of the Act given is well within the competence of the Legislature. In the case of Thanwal Kunju Musaliar (A.) v. Venkatachalam Potti (M.), ITO [1956] 29 ITR 349 (SC); AIR 1956 SC 246, the Travancore Taxation on Income (Investigation Commission) Act came into force on July 22, 1949. The notification was issued on July 26, 1949. Section 1(3) of the said Act contained similar provision as that of Jharkhand Act 13 of 2012 that the Act shall come into force on such date as the Government may, by notification, direct. In the said case it was urged that the notification issued on July 26, 1949 was bad in view of the fact that it purported to bring the Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ublished, powers conferred or other things done under the repealed Act, in so far as it is not inconsistent with the impugned Act. 99. In exercise of the powers under section 27(2), the State of Jharkhand framed Rules, which were notified by S. 0.14 dated July 13, 2013. Learned counsel appearing in W. P. (T) No. 909 of 2013, Mr. Indrajit Sinha, submitted that since the Rules came into force only on July 13, 2013, the asses-see/writ petitioner was not in a position to get itself registered and collect tax and hence, cannot be made liable to pay tax. It was further submitted that the repealed Act did not cover or provide for DTH service providers and special provisions with respect to the DTH service providers have been made in the Jharkhand Entertainment Tax Rules, 2013 and since DTH service providers were not covered under the Act repealed, the Rules made thereunder would not cover the DTH service providers and in that view of the matter, the impugned demand notices are liable to be quashed. 100. Taking us through the various provisions and also the Bihar Entertainment Tax Rules, learned counsel for the respondents submitted that though the Jharkhand Entertainment Tax Rules, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (2), entertainment tax shall be levied and paid to the State Government by an assessee-a tax on entertainment at the rate(s) as specified in the notification issued under the Act. Schedule of the Act contains description of the entertainment and the rate of entertainment tax to be levied. For entertainment falling under direct-to-home (DTH) or any other similar service is 10 per cent. of the total gross collection. As per section 16, the provisions of the Jharkhand Value Added Tax Act, 2005 and the rules made thereunder are made applicable to collect and enforce the payment of tax, levy, interest and penalty under the Jharkhand Entertainment Tax Act. The authorities empowered under the Jharkhand Value Added Tax Act, 2005 and rules made thereunder are empowered to assess, reassess, collect and enforce payment of tax, interest, penalty payable by the assessee under the Jharkhand Entertainment Tax Act. For the purpose of assessment, reassessment, collection and enforcement of payment of tax, interest, penalty, the provisions of the Jharkhand Value Added Tax Act, 2005 shall mutatis mutandis apply. 103. In view of second proviso to section 28 and section 29(2)(c), the Bihar Entertain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a Sky Limited v. State of Tamil Nadu [2013] 62 VST 69 (Mad) (W. P. Nos. 25721 of 2011 and connected cases) and in support of their contention, all the writ petitions in extenso referred/extracted the judgment of the Madras High Court. 106. In Tamil Nadu Entertainments Tax Act, 1939, section 41 is to tax direct-to-home (DTH) service. The Madras High Court found that section 41, charging section, is defective and that there was no tax levied on cable T. V network, whereas 40 per cent. tax was levied to direct-to-home (DTH) service. In that context, the Madras High Court held that classification made within the same classes is discriminatory. 107. In para (216) of the aforesaid judgment, the Madras High Court, observing that there is no qualitative difference between the cable T. V and DTH, held as under (para 220, page 172 in 62 VST):- 216. Thus on a reading of the provision relating to section 4E and section 41 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 fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d most the time the entire film is not recorded in the CD. 3. Viewers also have an option to pause the film at a particular point and continue to view it at a subsequent point of time at their own convenience. There is no doubt about the picture quality and complete film being exhibited. Viewers have no choice regarding the language used for kids channels like cartoon network, etc., and channels like discovery, national geographic and other relating to knowledge. Viewers have choice regarding the language used for kids channels like cartoon network, etc., and channels like discovery, national geographic and other relating to knowledge. One of the greatest disadvantage is that in case of electricity load shedding of either the owner of cable network or the viewer the event of entertainment cannot take place and it can be disrupted at any point of time on account of aforesaid leading to incomplete viewing of the programme which leads to a lot of mental discomfort and the whole idea of the entertainment is frustrated. Load shedding is a regular feature in the State of Jharkhand. The entertainmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ertainment tax shall not exceed 30 per cent. of the value of gross collection, admission charges. It was submitted that ceiling limit fixed at the rate of 30 per cent. is confiscatory in nature. 113. The above contention does not merit acceptance. The maximum ceiling of 30 per cent. on gross amount is neither confiscatory, nor violative of article 19 of the Constitution of India. As per the adopted Bihar Entertainment Tax Act, 1948, which was applicable to the State of Jharkhand till 2012, the maximum ceiling of entertainment tax was 110 per cent., which was subsequently reduced to 60 per cent. by the State of Jharkhand. As rightly contended by the respondents, the Jharkhand Entertainment Tax Act is more beneficial to the public at large as the ceiling has been reduced to 30 per cent. 114. Whether set top box or any other similar instrument/device can be included in the gross collection to levy entertainment tax on it?:- As per section 3, tax on entertainment and rate(s) as specified in the notification-tax is payable at the rate specified in the notification issued under the Act. As per the Schedule for entertainment, for entertainment falling under direct-to-home ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y way of contribution, subscription, installation or rent or security or activation charges or connection charges or any other charges collected in any manner whatsoever for direct-to-home (DTH) broadcasting service with the aid of any type of set top box or any other instrument of like nature at a residential or non-residential place. We are of the view that the connection charges are integral part of entertainment and have to be taken into account for the valuable consideration received by the assessee for calculating the gross collection. 117. However, while considering the relevant aspect of the impugned Act, it is also evident that the expression entertainment as contained in section 2(m) includes within its compass in the case of television exhibition through DTH service, payments made by way of contribution or subscription or installation or rent or security or connection charges or any other charges collected in any manner whatsoever. However, the payment made for the set top box by the subscriber is evidently not conceived in the definition of entertainment . At the same time, section 2(s)(v) includes payment made by any person to the proprietor of DTH service by w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bution/rent/security/sponsorship/acti-vation charges or any other valuable consideration receivable or received for providing entertainment. The subscriber obviously pays for content of the entertainment by making subscription and by paying any subscription and other allied charges for the activation of the equipment, etc., but payment for the set top box which may be by way of sale or hire purchase or even on rent, as per the regulation laid down by the telecom regulatory authority of India on the aforesaid subject, cannot be brought within the meaning of entertainment or payment for it. The aforesaid provisions under section 2(s), clause (v), Explanation which seeks to include payment for the equipment/charges such as set top box as payment for entertainment is beyond the purview of the State Legislature to be charged under the entertainment tax under the impugned legislation. 118. However, by relying upon the doctrines of severability for upholding the validity of the impugned legislation, the relevant provisions under Explanation to section 2(s)(v) so far it includes payment for set top box or any other similar equipment as within the meaning of payment can be read down as b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... invalidity of the Act in its entirety. On the other hand, if they are so distinct and separate that after striking out what is invalid, what remains is in itself a complete code independent of the rest, then it will be upheld notwithstanding that the rest has become unenforceable. Vide Cooley's Constitutional Limitations, Volume 1 at pages 360-361 ; Crawford on Statutory Construction, pages 217-218. 3. Even when the provisions which are valid are distinct and separate from those which are invalid, if they all form part of a single scheme which is intended to be operative as a whole, then also the invalidity of a part will result in the failure of the whole. Vide Crawford on Statutory Construction, pages 218-219. 4. Likewise, when the valid and invalid parts of a statute are independent and do not form part of a scheme but what is left after omitting the invalid portion is so thin and truncated as to be in substance different from what it was when it emerged out of the Legislature, then also it will be rejected in its entirety. 5. The separability of the valid and invalid provisions of a statute does not depend on whether the law is enacted in the same secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2012 on other grounds of challenge. 122. The writ petitioners have also challenged the demand notices issued under section 5 of the Act. As pointed out earlier, as per section 5 of the Act, the DTH service providers to pay entertainment tax on the total gross collection for valuable consideration by seventh of the month after expiry of the respective month. Since the writ petitioners have not paid the tax within the stipulated time, because of non-payment of tax, notices were issued to the petitioners calling upon them to pay the tax also interest and penalty. The impugned notices issued are in consonance with the provisions of the Act and the prayer sought for by the petitioner challenging the impugned notices are liable to be rejected. 123. The levy of entertainment tax has been the subject-matter of legislation of different state and the State Legislature such as State of Uttarakhand, State of Punjab, State of Delhi, State of Orissa and also the State of Uttar Pradesh as well. The impugned levy of the different State Legislatures have been upheld by the various judgments rendered by the respective High Court which have been relied upon by the respondent-State such as in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Constitution of India. Entertainment as defined in section 2(m) of the Jharkhand Entertainment Tax Act, 2012 read with section 2(k) direct-to-home (DTH) service and 2(1) direct-to-home (DTH) service provider , is not broadcasting service but only entertainment and State Legislature is competent to levy tax on the entertainment. In the charging section-section3-of the Jharkhand Entertainment Tax Act, 2012, there is clear intendment of levy of entertainment tax on the entertainment provided by direct-to-home (DTH). In view of the saving clause and the second proviso to section 28 and section 29(2) of the Jharkhand Entertainment Tax Act, 2012 and the mechanism to assess, collect and impose penalty provided under section 16, framing of Rules on July 13, 2013 would not affect the liability of the petitioners to pay the entertainment tax In view of the fine distinction between direct-to-home service and cable T. V., levy of entertainment tax at the rate of 10 per cent. on direct-to-home (DTH) service vis-a-vis 7.5 per cent. on the entertainment through cable TV, is not discriminatory. Applying the R. M. D. Chamarbaugwalla v. Union of India [1957] SCR 930 ; A ..... X X X X Extracts X X X X X X X X Extracts X X X X
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