9911796707
TMI Blog2015 (5) TMI 913X X X X Extracts X X X X X X X X Extracts X X X X ..... Ltd. Vs. Asstt. Commissioner, Commercial Taxes: SB Sales Tax Revision No.263/2012, decided on 16/02/2015 and therefore, in the light of the said judgment, the present matter is required to be considered. 3. Brief facts are that the assessees namely; M/s Radiant Satellite Private Ltd and M/s Bhaskar Multinet (Private) Ltd. are providing entertainment facility as Multi System Operator (for short, 'MSO') through cable operators. The Assessing Officer (for short, 'AO'), under the powers conferred under Section 4AA of the Rajasthan Entertainment and Advertisement Act, 1957 (for short, the 'Act, 1957') and in the light of the notification No.F.12(14)FD/Tax/2006/139 dt.08/03/2006, assessed Rs. 20/- per subscriber connection and levied entertainment tax. The AO held that in view of the amended definitions and charging provisions contained under Section 4AA of the Act, 1957, the proprietor of cable TV network, providing cable services, shall also be liable to pay the entertainment at the rate not exceeding Rs. 600/- per subscriber every year and at such rates the State Government may notify from time to time in the Official Gazette. The AO, in the light of the judg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that the judgment of the Hon'ble Apex Court in the case of M/s. Purvi Communication (supra) was distinguishable, as the judgment in the case of M/s. Purvi Communication (supra) was based on West Bengal Entertainment-cum-Amusement Tax Act, 1982 whereas the Act of Rajasthan was separate. 5.1 The Revenue carried the matter in appeal before the Tax Board, who, after analyzing the material available on record and considering the amendments made in the Entertainment Tax Act particularly Section 3(5) by the Rajasthan Finance Act, 2011 with retrospective effect from 25/2/2008 and in the light of the judgment rendered by the Hon'ble Apex Court in the case of Purvi Communication (supra) as also in the light of the judgment rendered by the Hon'ble Apex Court in the case of Indusind Media & Commun. Ltd. & Anr. Vs. Mamlatdar & ors. : (2011) 15 SCC 294, held that the order of the DC(A) was not proper and the judgments of the Hon'ble Apex Court rendered in the case of Purvi Communication (supra) and Indusind Media & Commun. Ltd. (supra) are squarely applicable on the facts of the instant case and accordingly, reversed the order of the DC(A) and sustained the order of the AO. He ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... definition is totally inapplicable on the phraseology of the definition under the present Act. It was further contended that the judgment in the case of Indusind Media & Commun. Ltd. (supra) also rested on its own facts and are inapplicable. It was further contended that the AO, without any just basis, by assuming and presuming that there were thousands of subscribers, has levied the aforesaid tax which is improper. It was further contended that the Hon'ble Chief Minister, while giving Budget speech for the Budget Session 2006-2007 on 08/03/2006, had granted such concessions/relaxations but the same has not been considered. It was further contended that under the West Bengal Entertainment-cum-Amusement Tax Act, 1982, sub-cable operator means "a person, other than any owner or person who is a cable operator referred to in the sub-section, who, on the basis of an agreement, contract or any other arrangement made between him and such cable operator, receives signals from such cable operator and provides cable service for exhibition of performance, film or any programme to the customers" whereas under the Act, 1957, sub-cable operator has not been defined. They further contended t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns raised by counsel for the assessee and has analyzed every judgment and the same very definitions and the question as to who can be said to be a proprietor has been adequately considered and answered and contended that when this Court has already come to a conclusion on the same material,same facts, same Act, same Notifications and same definitions then in the light of the said judgment, nothing survives. 10. I have heard ld. counsel for the parties and perused the material available on record including the judgments cited on behalf of both the sides. 11. Though Mr. Vivek Singhal, appearing for the assessee (M/s Radiant Satellite Private Ltd.) and Mr. Alkesh Sharma, appearing for the assessee (M/s Bhaskar Multinet (Private) Ltd.) tried to distinguish the judgment rendered by the Hon'ble Apex Court in the case of Purvi Communication P. Ltd. (supra), which has been relied upon by the Tax Board in one of the case so also the coordinate Bench of this Court at Principal Seat, Jodhpur in the case of M/s Sky Media (P) Ltd. (supra) and the judgment rendered by the Hon'ble Apex Court in the case of Indusind Media & Commun. Ltd. (supra) and in my view, the controversy in the inst ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, the proprietor; may, in lieu of payment under sub section (1), pay a compounded amount to the State Government on such conditions and in such manner as may be prescribed and at such rate as the State Government may, notify and different rates of compounded amount may be notified for the different category hotels and restaurant." Section 4AAA. "Levy of tax on direct to home broadcasting service-- The proprietor of a direct to home broadcasting service shall be liable to pay entertainment tax at such rates, not exceeding twenty percent of the monthly subscription charges per subscriber, as the State Government may, from time to time, notify in the Official Gazette, in this behalf and different rates may be notified for different categories of subscribers." Rules 18BBBB-"Permission to be obtained to operate direct to home broadcasting service. (1) The proprietor of a direct to home broadcasting service shall submit to the Commissioner an application within 15 days from the date on which these rules come into force or at least within 15 days of his commencing entertainment through direct to home broadcasting service, whichever is later. (2) The proprietor shall submit to the Com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sements Act, 1957 and is liable to pay entertainment tax on the satellite signals or electronic TV signals provided to the cable operators, who further transmit the same to the viewers/consumers for entertainment by exhibition of films & videos etc." 16. This Court, in the case of M/s Sky Media (P) Ltd. (supra) considered this issue and after analyzing the definition of 'proprietor' and 'subscriber', at length went into the various amendments brought in by the State which is reproduced ad-infra:- "The aforesaid judgments in the considered opinion of this Court leaves no manner of doubt that the present assessee, a Multi System Operator, will clearly fall within the ambit and scope of the definition `Proprietor' read with the charging provision of Section 4AA of the amended law, irrespective of the fact that there is no separate definition of such MSO, cable operator or sub-cable operator in the Rajasthan Act. A closer scrutiny of the definition of `Proprietor', who falls within the tax net under the said law would reveal that even MSO like the present assessee is undoubtedly a person connected with the organization of entertainment. He may or may not be a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce" & DTH Rajasthan Finance Act, 2011 25.02.2008 4 Section 3(6) Definition of "Entertainment Tax" From the inception of the Act of 1957 From the inception of the Act of 1957 5 Section 3(8) Definition of "Proprietor" From the inception of the Act of 1957 From the inception of the Act of 1957 6 Section 3[11(A))] Definition of "Subscriber" inserted Rajasthan Finance Act, 1999 26.03.1999 7 Section 4AA Levy of "Tax on cable service" Rajasthan Finance Act, 1999 26.03.1999 8 Insertion of "Direct to Home Broadcasting Services" in section 4AA Rajasthan Finance Act, 2014 31.07.2014 9 Section 4AAA "Levy of Tax on Direct to Home Broadcasting Services" Rajasthan Finance Act, 2008 25.02.2008 10 Deletion of Section 4AAA "Levy of Tax on Direct to Home Broadcasting Services" Rajasthan Finance Act, 2014 31.07.2014 17. Thus the above question was answered in favour of the Revenue and against the assessee and it was held that the assessee would fall within the scope of charging provision of the Act of 1957, under the retrospectively amended provisions of the Act and the present assessees would also fall within the definition of 'Proprietor' as defined und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tainment Tax. It is not in dispute that the appellants are Multi- System Operators, who transmit the signals to the cable operators and in turn, the cable operators transmit signals to the subscribers. In such a way, as the appellants are connected to an organisation of the entertainment, they would be `proprietors' as per the provisions of the Act. Hence, this issue does not need any further consideration. With regard to the second issue, it was contended by the appellants that penalty under Section 9(3) of the Act can be imposed only if there is any wilfull mis-statement or suppression of facts. In the instant case, the appellants were under a genuine belief that they would not fall under the definition of `Proprietor' under the Act and hence, imposition of penalty is unfair. It was further argued on behalf of the appellants that the impugned order imposing the penalty is violative of the principles of natural justice as no notice was issued under Section 9 of the Act and also no opportunity of being heard was afforded to the appellants." 22. In view of the above facts and circumstances, the revisions petitions, in so far as M/s. Radiant Satellite Private Ltd. are concer ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
