TMI Blog1997 (8) TMI 518X X X X Extracts X X X X X X X X Extracts X X X X ..... made a new argument in respect of which pleadings have been raised only in the first writ petition, we first take up the first writ petition and state the facts therefrom relating to the new argument. It is averred that the Recreation Centre is being run as a welfare measure by the NTPC for its employees, who are working at Singrauli Super Thermal Power Station, Shaktinagar, district Sonebhadra; that the Centre was established in 1981 of which employees of the singrauli Super Thermal Power Station are members; membership fee at the inception was ₹ 4/- per month, but later that was increased to ₹ 8/- per month; that the Centre provides several facilities, namely, library, newspaper, magazine, indoor games, swimming pool etc. to its members; in 1987, a dish antena for watching the worldwide T. V. programmes was installed at the Centre from which the members of the Centre could watch Cable T. V. programmes through T.V. in their homes free of charge; that the members of the Centre were subjected to payment of ₹ 8/- per month as membership fee and nothing was charged for Cable T.V. programmes. 5. Before stating further pleadings of the case, it is worth pointing out ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... We endorse the said observation. If the petitioners file an application for exemption and if they satisfy the Government then the entertainment is confined to their employees and is practically free, the Government shall consider the grant of exemption in accordance with law. With the above observations, the special leave petition is disposed of. 7. The facts of the case of Hindalco and the instant petition are almost the same and the only difference pointed out is that whereas in the former nominal charge of ₹ 5/- per month was collected for each connection towards maintenance, in the latter monthly charge of ₹ 8/- is said to be towards membership fee and no amount for Cable T.V. Net work is said to have been charged. This difference, in reality, is no difference, inasmuch as the Supreme Court had held in the case of Hindalco that if entertainment is provided to the employees free of charge, then the Hindalco might approach the State Government for exemption. So far as the taxability under the Act is concerned, that was upheld by the Supreme Court in the case of Hindalco. There being no substantial difference between the case of Hindalco and the instant case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... c writ petition No. 505 of 1996) nor in writ petition No. 1350 of 1993, Universal Communication System and Ors. v. State of U. P. and Ors. (sic writ petition No. 1353/93) nor the same had been argued and decided by the Hon'ble Supreme Court of India in the aforesaid Special Leave Petition filed by Hindalco Industry and another v. State of U. P. and another. Therefore, these judgments cannot be called as precedents nor have binding authority as these judgments were passed sub-silentio. 11. The question is what turns upon the above mentioned new pleadings of the petitioner. In short, the submission of Sri Bhattacharya is that ether is a transmitter of TV signals and the right to ether is inalienable right just like the right to light and right to air. He submits that unlike cinema wherein feature films are exhibited through mechanical apparatus, transmission of signals through Cable TV is devoid of mechanical device and, therefore, that falls under Entry 31, List 1 of the 7th Schedule. It is, therefore, averred in para 22 of the writ petition that entertainment tax can be levied only by Central law and not by the State legislature. It is said that the State Legislature is inc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... form one group mentioning the subjects on which the States could legislate. Entries 45 to 63 in that list form another group and they deal with taxes. Entry 18, for example, is 'Land' and Entry 45 is 'Land revenue'. Entry 23 is 'Regulation of mines' and Entry 50 is 'Taxes on mineral rights'. The above analysis --and it is not exhaustive of the entries in the Lists leads to the inference that taxation is notintended to be comprised in the main subject in which it might on an extended construction be regarded as included, but is treated as a distinct matter for purposes of legislative competence. And this distinction is also manifest in the language of Article 248, Clauses (1) and (2) and of Entry 97 in List I of the Constitution. 14. The Supreme Court summed up in para 55 of the AIR 1958 SC 468 that under the scheme of the Entries in the Lists, taxation is regarded as a distinct matter and is separately set out. 15. Sri Bhattacharya only submits that transmission through telecasting comes within the scope of Entry 31 of the Union List, but he did not point out as to under which entry entertainment tax will be levied. Perhaps, he is under the im ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rtainment tax was levied thereon. A large number of writ petitions were filed in the Madras High Court challenging the validity of the Amendment Act. The ground of challenge, inter alia, was that the State legislature has no legislative competence to enact the Amendment Act, in asmuch as the subject matter of the enactment falls exclusively within the province of Parliament, that is, List I of the 7th Schedule to the Constitution. Such contention was negatived by the Madras High Court and then a SLP was filed and the decision of the Madras High Court was challenged before the Supreme Court, which in its judgment reported as A. Suresh v. State of Tamil Nadu 1996 (8) SCALE 493 : (AIR 1997 SC 1889), held as under (para 7 at p. 495) (at p. 1891 of AIR) : The High Court has dealt with each of these contentions advanced by the writ petitioners separately and exhaustively and rejected each of them. Since we agree with the reasoning and conclusions arrived at by the High Court on all the issues, we think it unnecessary to deal with the above submissions except contentions Nos. 3, 4 and 7. 19. Since the judgment of the Madras High Court is not before us, we are not in a position to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hange and it's exercise has to be balanced against societal interests............................ While there can be no tax on the right to exercise freedom of expression, tax is leviable on profession, occupation, trade, business and industry. 21. In the case of Cable T. V. Operators, the right of speech is mixed up with business and, therefore, they are liable to be taxed under the Act. Article 19(1)(a) is not violated in such cases. 22. In the Bank Nationalisation Case AIR 1970 SC 564, it was held that the direct operation of the Act upon the fundamental right forms the real test. Indirect or ancillary effect is immaterial and irrelevant. In that case, the newsprint policy of 1972-73 was challenged and then the Court held that the effect and consequence of impugned policy upon the newspapers is directly controlling the growth and circulation of newspapers. 23. In the instant case, the petitioner has furnished no material to show in what way has the imposition of tax directly affected the petitioners' freedom of speech and expression and, therefore, the imposition of entertainment tax cannot be said to be violative of Article 19(1)(a). 24. For these reasons, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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