New User   Login      
Tax Management India .com TMI - Tax Management India. Com
Extracts
Home List
← Previous Next →

2015 (9) TMI 779 - GUJARAT HIGH COURT

2015 (9) TMI 779 - GUJARAT HIGH COURT - TMI - Constitutional 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 Serv .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

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-Hom .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

har 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. .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

3599 of 2013 - Dated:- 12-3-2015 - M. R. Shah And Sonia Gokani, JJ. For the Appellant : Mr SN Soparkar, Sr Adv. with Mr Amar N Bhatt, Mr Sandip Laddha, Sr Adv. with Mr Chetan K Pandya, Mr Deven Parikh , Sr Adv., Mr Shalin Mehta, Sr Adv. and Mr Kunal P Vaishnav, Adv For the Respondent : Mr Kamal Trivedi, Adv. General with Ms Sangita Vishen, Asstt Govt. Pleader JUDGMENT (Per : Honourable Mr. Justice M. R. Shah) [1.0] As common question of law and facts arise in this group of petitions, they are he .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ltra vires the Constitution of India and beyond the legislative competence of the State of Gujarat and consequently to quash and set aside the same. It is also further prayed for appropriate writ to declare that the Gujarat Entertainment Tax (Exhibition by means of Direct-To-Home (DTH) Broadcasting Service) Rules, 2010, [hereinafter referred to as "Rules, 2010"], particularly Rules 3, 4, 5, 6, 7, 11, 12, 13, 14 and 16 are ultra vires the Constitution of India and are arbitrary, caprici .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

the respondent No.2 for recovery of entertainment tax. [3.0] For the sake of convenience, facts in Special Civil Application No.3430/2010 are narrated as the facts with respect to other petitioners are identical and similar. [3.1] It is the case on behalf of the respective petitioners that they provide DTH Broadcasting Services to subscribers across India. That the respective petitioners are DTH service providers having been granted license under section 4 of the Indian Telegraph Act, 1885 and .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

nt medium for information dissemination. That it facilitates dissemination of news, current affairs, sports events, educational programme, programmes related to public health, employment opportunities, consumer awareness etc. in addition to catering to the recreational needs. That the DTH being a mass service can be used in any geographical location, unlike the traditional delivery platform - analog cable, which is limited to a small geographical location in operation and cannot penetrate in rem .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

s that there is a mandate in the DTH statutory license conditions that a DTH platform shall compulsorily carry eight (8) Prasar Bharati Channels, such as Lok Sabha channel which have no entertainment value. [3.4] That the Government of India has granted a statutory license to the petitioner under section 4 of the Indian Telegraph Act, 1985 and the Indian Wireless Telegraphy Act, 1933 on the terms and conditions contained in the License Agreement for a period of 10 years. That the petitioner has .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

as prescribed by the Wireless Planning and Coordination Authority (WPC) under the Department of Telecommunications. That the petitioner has been also granted permission on nonexclusive basis for a period of 10 years to establish, maintain and operate uplinking hub (Teleport). That the license granted to the petitioner is for the whole of India and the petitioners are not required to get any permission / any other license from any of the authority for providing DTH Broadcasting services. It is th .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

hing contained in sections 3, 4, 6, 6A or 6B or any other provisions of the said Act, there shall be levied and paid, by the proprietor of every Direct-To-Home (DTH) Broadcasting Service, to the State Government, the entertainments tax, per television set which receives 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 transmission through Direct-To-Home (DTH) Broadcasting Serv .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

me into force w.e.f. 01.08.2009, for the first time the entertainment tax is levied treating the DTH as entertainment. That the draft Rules under the Act came into public vide notification dated 31.01.2010. That the objections and/or suggestions to the draft Rules from all persons likely to be affected thereby were invited. The petitioner also submitted its objections. That thereafter vide notification dated 03.03.2010 [Annexure-B], the Rules are framed as per the draft rules. Rule 6 provides fo .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

eipt of payment; Rule 16 provides for order of assessment. That the petitioner has been served with the notice at Annexure-C to comply with the provisions of entertainment tax and threatening action unless the notice is complied with. Hence, the respective petitioners have preferred the present Special Civil Applications under Article 226 of the Constitution of India challenging the levy of entertainment tax on the DTH Broadcasting services by the Act, by the State of Gujarat alleging inter alia .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ri Amar Bhatt, learned advocate appearing on behalf of the petitioner of Special Civil Application No.3430/2010 - Tata Sky Limited. Shri Sandip Laddha, learned Counsel has appeared with Shri Chetan K. Pandya, learned advocate appearing on behalf of the petitioner of Special Civil Application No.3539/2010 - Bharat Business Channel Ltd.; Shri Deven Parikh, learned Senior Advocate has appeared with Shri Chetan K. Pandya, learned advocate appearing on behalf of the petitioner of Special Civil Applic .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

alf of the State of Gujarat. [5.0] Shri Soparkar, learned Counsel appearing on behalf of the petitioner of Special Civil Application No.3430/2010 - Tata Sky Limited has vehemently submitted that the Entertainment Tax (Amendment) Act, 2009 is beyond the legislative competence of the State and therefore, it is ultra vires the Constitution of India. [5.1] It is further submitted by Shri Soparkar, learned Counsel appearing on behalf of the petitioner of Special Civil Application No.3430/2010 that DT .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ubmitted by Shri Soparkar, learned Counsel appearing on behalf of the petitioner that the DTH license has been granted by the Central Government to DTH Operators under Central Act - Indian Telegraph Act, 1885. It is submitted that as per section 4 of the Indian Telegraph Act, 1885, only Central Government has exclusive privilege in respect of telegraph and power to grant licenses to the DTH Operators. [5.3] Without prejudice to the above, it is further submitted by Shri Soparkar, learned Counsel .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

1994, the service tax was introduced under Chapter V of the Finance Act, 1994 with reference to its residuary power under Entry 97 List I [Union List] of the Schedule VII to the Constitution of India and that the DTH Broadcasting Services were included in the service tax net with effect from 16.07.2001 by the Finance Act, 2001 under section 65(105)(zk). It is submitted that the State therefore cannot impose entertainment tax on DTH services, the field having been occupied by the Entry 97 read w .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

t I and therefore beyond the legislative competence of the State, although it must be stated that during the hearing it has been pointed out that Entry 92C of List I is yet to be notified and therefore not in force. [5.5] It is further submitted by Shri Soparkar, learned Counsel appearing on behalf of the petitioner that even otherwise the DTH services cannot be said to be providing "entertainment". It is sumbitted that therefore the DTH services cannot be said to be providing "en .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

absence of any such place and consequent admission, no such levy can be imposed on DTH to private homes. It is submitted that therefore the impugned Act is contrary to the objects and purpose of the Gujarat Entertainment Act, 1977 and therefore also, ultra vires. [5.7] It is further submitted that the taxation on entertainment in Entry 62, List II are confined to a tax on organized entertainments in a public place and therefore, the Amendment Act, 1977 is ultra vires. [5.8] It is further submitt .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

gislative practice on this subject, in particular the English Sunday Observance Acts 162517870, the Finance (New Duties) Act, 1916, and the interpretation of the Courts in the early years of our Constitution, clearly demonstrates that the word "entertainments" had attained nomen juris and was always used as a reference to entertainment in public places. [5.10] It is further submitted that Parliament has refrained from imposing service tax on entertainment in public places recognizing t .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

negative list, which is defined in section 66D, inter alia contains "admission to entertainment events or access to amusement facilities". It is submitted that the definition of "entertainment events" in section 66(24) refers to the exhibition of cinematographic films, circus, concerts etc. all of which are events in public places. It is further submitted that the budget speech of the Finance Minister for the year 2012-13 states that the negative list has been carefully draw .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

he petitioner that in the case of M/s. Tata Sky Ltd. v. State of M.P., the Hon'ble Apex Court observed that the rules framed under the Madhya Pradesh Entertainment Duty and Advertisement Tax Act of 193 cannot be extended to cover DTH operations being carried out by the petitioners. It is further submitted that in the aforesaid decision the Hon'ble Supreme Court has observed that "it is well settled that if the collection machinery provided under the Act is such that it cannot be app .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

r annum per connection is sought to be charged from DTH operators whereas only ₹ 6 per month is charged from the cable operators. It is submitted that thus the charging section 6E violates Article 14 of the Constitution of India. In support of his above submissions, Shri Soparkar, learned Counsel appearing on behalf of the petitioner has heavily relied upon the decision of the Hon'ble Supreme Court in the case of Ashirwad Films v. Union of India reported in (2007)6 SCC 624. It is submi .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

nnels, providing services of the same broadcasters, competing in the same market and catering to the same set of consumers, is expressly discriminatory and violative of Article 14. It is submitted that the Madras High Court in its judgment dated 19.10.2012 in Writ Petition Nos.25721/2011 in case of Tata Sky Ltd. vs. State of Tamil Nadu and other allied petitions which was inter alia filed by the very petitioner, challenging the provisions of Tamil Nadu Entertainment Tax Act, 1939 as amended by t .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

submitted by Shri Soparkar, learned Counsel appearing on behalf of the petitioner that even as held by the Hon'ble Supreme Court in the case of Federation of Hotel & Restaurant Association of India v. Union of India reported in (1989)74 STC 109 , the classification must be rational, based on some qualities and characteristic which are to be found in all the persons grouped together and absent in the others left out in the class. It is submitted that the differential rates must have a rat .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

and not tenable. In support of his above submissions, he has heavily relied upon the paras 186, 187 and 207 of the decision of the Madras High Court rendered in Writ Petition Nos.25721, 2707127071, 25986, 25987, 25978, 28979, 25872, 25873 and 25927 to 25929 of 2011. [5.16] Shri Soparkar, learned Counsel appearing on behalf of the petitioner has also relied upon the following decisions of the Hon'ble Supreme Court in support of his above submissions. 1. Hoechst Pharmaceuticals Ltd. v. State .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

the Constitution of India. [6.1] It is submitted that DTH operators are given license on payment of nonrefundable fee of ₹ 10 Crores to the Ministry of Information and Broadcasting and have also given Bank Guarantee of ₹ 40 Crores. It is submitted that Rules 6, 7 of the Rules, 2010 requiring the DTH operators to pay registration fees of ₹ 10 Lacs and renewal fees of ₹ 10,000/- and security deposit of ₹ 10 Lacs would amount to enacting a law by entrenching upon the l .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

support of his above submissions, he has relied upon the decision of the Hon'ble Supreme Court in the case of District Registrar & Collector, Hyderabad vs. Canara Bank and Ors. reported in (2005)1 SCC 496. [6.3] It is further submitted by Shri Soparkar, learned Counsel appearing on behalf of the petitioner that Rule 13 of the Rules, 2010 requires that a receipt shall be issued for every payment made towards installation and other charges. However, the DTH operators operates on a prepaid .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

t therefore, the impugned Rules are violative of Article 14 of the Constitution of India. Making above submissions and relying upon above decisions, learned Counsel appearing on behalf of the petitioner has requested to allow the present Special Civil Applications and grant the reliefs as prayed for. [7.0] Shri Shalin Mehta, learned Senior Advocate appearing on behalf of the petitioner of Special Civil Application No.3982/2010 - M/s. Bharti Telemedia Ltd. has made following submissions over and .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ters who provide entertainment channels like news, education etc. It is submitted that in view of the teleport licence/permission granted by the Government of India, the Ministry of Information and Broadcasting, the petitioner had set up the uplinking hub (Teleport) which enables the petitioner to downlink signals from various satellites of the various broadcasters of TV channels and then uplink to its own satellite Ku Band. It is submitted that these signals are received by the dish antenna ins .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

to customers. It is submitted that the said set top boxes are not specially designed to be compatible only with services provided by the petitioner. It can be used by a customer for availing of the services from any DTH service provider. It is submitted that when a new connection is given to the customer, such subscriber gives the petitioner the applicable charges for installation and activation. It is submitted that after the installation and activation the subscriber is required to pay a mont .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ax on the DTH broadcasting services is absolutely illegal and arbitrary. [7.2] It is further submitted that section 6E of the Entertainment Tax Act, 2009, which imposes entertainment tax on DTH Broadcasting services can be upheld as a valid piece of legislation only if the incidence of tax is on entertainment. It is submitted that if the incidence of the entertainment tax is not on entertainment but on service, the charging section of tax fails. It is submitted that in the present case section 6 .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

rvice tax at the rate of 10.3% of its gross receipts as provided under the Finance Act. It is submitted that therefore the State Government cannot compel the petitioner to pay the entertainment tax on DTH broadcasting service. It is further submitted that the law allows double taxation on the same transaction, provided a transaction is a separate distinct aspect. It is submitted that in the present case, providing DTH broadcasting service to subscribers is one transaction which gives rise to sep .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

the Constitution of India. [7.3] It is further submitted that the DTH Broadcasting is an indivisible contract of service whose service element cannot be split up. It is submitted that taxable service of broadcasting is defined under section 69(105)(2k) of the Finance Act, 2001. It is submitted that thus the entertainment derived by the subscribers of DTH broadcasting service is a consequence of service rendered by the petitioner. It is submitted that without service there would be no entertainme .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

e, the service element of a transaction cannot be taxed by the State Legislature. In support of his above submissions, he has heavily relied upon the decision of the Hon'ble Supreme Court in the case of Bharat Sanchar Nigam Limited v. Union of India reported in (2006) 3 SCC 1 (Paras 87 and 88). It is submitted that applying the law laid down by the Hon'ble Supreme Court in the case of BSNL (Supra), if the transaction of DTH broadcasting service is recognized to have two separate elements .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

tible with BSNL. [7.5] It is further submitted that the reliance placed upon the decision of the Hon'ble Supreme Court in the case of State of West Bengal and Ors. v. Purvi Communications Private Limited and Ors. reported in (2005)3 SCC 711 by the State Government to defend section 6E is absolutely misplaced and not applicable to the facts of the case on hand. Making above additional submissions, it is requested to allow the present Special Civil Applications and grant the reliefs as prayed .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

he levy of entertainment tax on DTH service is absolutely illegal and most arbitrary. [9.0] All these petitions are opposed by Shri Kamal Trivedi, learned Advocate General appearing with Ms. Sangita Vishen, learned Assistant Government Pleader appearing on behalf of the respondent State. It is vehemently submitted by Shri Trivedi, learned AG for the State that as such the Gujarat Entertainment Tax Act (Amendment) Act, 2009 of which the vires are challenged is as such relatable to only Entry 62 o .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ist I of the Constitution is concerned, the same was introduced for taxation on services, by the Constitution [88nd Amendment], Act, 2003. However, though the Amendment Bill has been passed in both the houses of Parliament, it was never given effect to, as required by section 1(2) of the said Act, 2003. It is submitted that therefore the reliance on Entry 92C by the petitioners is totally misconceived. [9.2] Now, so far as the Entry 97 of List I is concerned, the same is a residual entry, which .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ent case. It is submitted that as such the petitioners have rightly not invoked the applicability of the said Entry 97 of List I in their pleadings. [9.3] It is further submitted that similarly the applicability of Entry 31 of List I to the subject of Entry 31 of List I to the subject of "entertainment" is only with reference to the power of "regulation and control" of the Central Government by virtue of the Indian Telegraph Act, 1885 and Indian Wireless Telegraphy Act, 1933. .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

of taxation relatable to Entry 62 of List II for enacting the Act. [9.4] It is further submitted by Shri Trivedi, learned Advocate General appearing on behalf of the State that the provisions contained in section 2(j)(iiia) read with section 6E of the Act are the charging provisions of the Act. It is submitted that 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 .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ork attached to it or cable division or DTH Broadcasting service. [9.5] It is further submitted by Shri Trivedi, learned Advocate General that the Hon'ble Supreme Court in the case of Purvi Communications (P) Ltd. (Supra) has held that the performances, films, programmes shown to viewers through the television network (Cable Service) as falling within the meaning of "entertainment" and therefore it is within the legislative competence of the State Legislature under Entry 62 of List .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

hri Trivedi, learned Advocate General appearing on behalf of the State that the High Court of Punjab & Haryana in the case of Tata Sky Ltd. v. State of Punjab reported in (2011)37 VST (PH); High Court of Delhi in the case of Bharti Telemedia Ltd. v. Government of NCT of Delhi & Anr. reported in (2011)44 VST 262 (Delhi); High Court of Orissa in its judgment dated 24.04.2012 in Writ Petition (C) No.8966/2011 rendered in the case of M/s. Tata Sky Ltd. v. State of Orissa and the Allahabad Hi .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

tate that in the present case "Aspect Theory" as originally propounded by the Courts in Canada and thereafter followed by Courts in India, would be applicable. It is submitted that as per the said theory, 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. Shri Trivedi, learned Advocate General has relied upon the decision of the Delhi High Court in .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ts through DTH system, whereas, in respect of the entertainment aspect, the taxable event is the entertainment from the content. It is submitted that by observing as above it is held that the State legislature had and has the legislative competence to levy an entertainment tax on all payments for admission to an entertainment through DTH. It is submitted that similar view has been taken by other High Courts i.e. P&H High Court in the case of Tata Sky Ltd. (Supra); Orissa High Court also in t .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

Purvi (Supra) by holding inter alia that if one single transaction has two taxable events, both can be taxed but two taxable events cannot be mixed up by allowing two separate taxes on one event, is absolutely a misconception on the part of the petitioners. It is submitted that it is a misconception on the part of the petitioners to assume that there is only one event involved in the present case i.e. DTH Broadcasting services. It is submitted that as observed by the Delhi High Court in the case .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

Nigam Ltd. (Supra), the petitioner Company was providing service to its subscribers through SIM Card, where, the service tax was liable on the cost of SIM Card whereas, Sales Tax was also leviable on the sale price of SIM Card including value of activation charge. It is submitted that in the said case it was alleged that if the SIM card is not sold by the assessee to the subscribers but is merely part of the service rendered by the service providers, then in that case, the SIM card cannot be cha .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

levance only in the context of sale' and service' and not in the context of entertainment' and service', which are present in the instant case. It is submitted that in case of State of Madras v. M/s. Gannon Dunkerly & Co. Ltd. reported in AIR 1958 SC 560, it was held by the Hon'ble Supreme Court that several composite transactions in which though there was an element of sale, were not assesssable as contracts for sale of goods liable to Sales Tax. It is submitted that tho .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

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. It is submitted that therefore the judgment of the Hon'ble Supreme Court in the case of Bharat Sanchar Nigam Ltd. (Supra) has no applicability of whatsoever nature in the present case. In support of his above submissions, Shri Trivedi, learned Advocate General has also relied upon the decision of the Kerala High Court in the case of All .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

allenged on the ground that the impugned service is, in pith and substance, a tax on the practice of a "profession" and "trade", falling within employment relatable to Entry 60 in List II of the 7th Schedule to the Constitution and, therefore, beyond the competence of Parliament. It is submitted that in the aforesaid decision it is held that there is a crucial difference between the tax levied for being in the profession and the tax levied on the value of service rendered in .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

aning of the term "entertainment" used in the Entry, because the term "entertainment" used in Entry 62 of List II means "entertainment" in public place, a public show and not within the precincts of a private person's home and the contention on behalf of the petitioners that DTH entertainment is not the placerelated entertainment and hence, levy of Entertainment Tax under the Act on the same is constitutionally bad is concerned, Shri Trivedi, learned Advocate Ge .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

judgment, the Hon'ble Supreme Court clearly observed to the effect that the expression "entertainment" is of a very wide amplitude so as to take within its fold every kind of entertainment." It is submitted that while following the aforesaid decision, the Delhi High Court in the case of Bharti Telemedia Ltd. (Supra) has observed in para 42 that the "...times have changed, technology has changed and this has brought about a complete upheaval in the manner of delivering en .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ted by Shri Trivedi, learned Advocate General appearing on behalf of the State that sections 2(dd), 2(e), 2(g) and 2(gg) of the Act deal with the definitions of DTH Broadcasting Service', entertainment', payment for admission' and place of entertainment', respectively and section 2(j) and 6E of the Act which are charging provisions' for the purpose of demonstrating that the provisions of the Act in the present case are very much pari materia in nature with the provisions of t .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

rticle 14 of the Constitution of India on the ground that there is a distinction in levy of entertainment tax at ₹ 200 per TV set for connection sought to be charged from DTH operators and whereas only ₹ 6 per month is charged from cable operators, though the entertainment being provided is the same and reliance placed upon the decision of the Hon'ble Supreme Court in the case of Ashirwad Films (Supra) and the decision of the Madras High Court in the case of Tata Sky Ltd. (Supra) .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

er affidavit, which clearly go to show that the different classification made in the present case is not like the one present before the Hon'ble Supreme Court in the case of Ashirwad Films (Supra) where the classification based only on language was held to be unreasonable and arbitrary, since the same lacks logic or raison d'etre. [9.14] Shri Trivedi, learned Advocate General appearing on behalf of the State has requested to consider the following distinguishing features between the cabl .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

e stereo sound instead of mono audio available in case of cable TV. c. In view of the above, cable operators charge less rent. c. Petitioner company charges on a higher side as compared to cable operator. d. The cable TV's channel capacity is much lesser. d. Channel capacity is much higher and hence it attracts more customers. e. Customers base is very small limited to villages or areas of towns and cities. e. Customer base is very large across the country since satellite transmission can co .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

(iii) NIL entertainment tax in rural area. g. Class of users consists of people who are capable to bear the burden of higher tax rates as compared to the class availing of Cable TV facilities. [9.15] It is further submitted that similarly reliance placed on paras 186, 187 and 207 of the judgment of the Madras High Court in the above referred case pales into insignificance inasmuch as the points of distinguishing features brought about in the present case were never agitated before the Hon'b .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

H." It is submitted that however further observations of the Hon'ble Madras High Court to the effect that mere difference in technology and quality of presentation, number of channels available, possibility of recording facility or payment facility, are per se not legally sustainable and run contrary to the following judgments, according to which, such differences can always justify the classification being not in contravention of Article 14 of the Constitution. [9.16] It is submitted t .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

(Paras 3, 5, 9), the Hon'ble High Court justified the classification between exhibition of films through cinematographs on one hand and through 3D video cassette recorded by applying back prerecorded cassettes on a television screen, on the other against the argument that both the entertainments served the same purpose as entertainment of the people and that the quality and type of entertainment provided through both the media is also similar, besides the source of authority to legislate is .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

es on small television set is entirely a different process of exhibition of film than the one whore the cinema film by means of a projector is projected on a wide screen at quite same distance. The sound recording system is also quite distinct in both the cases. Experience also shows that at present at least in this State, the exhibition by video cassette recorder is on a comparatively small television screen of 27" or so. The screen on which the film is shown through projector is very wide .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

a cinema theatre exhibiting film through a projector. This being the position, it is difficult to say that the two exhibitions stand on similar footing and, therefore, need similar treatment and that if by Regulations different and lenient treatment is shown to exhibition of films by video cassette recorder, those Regulations violate the principle underlying Art.14." (Emphasis supplied) "9. It will thus appear that while the entertainment through exhibition of films has been subjected .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

t, therefore fail." [9.18] It is further submitted that in the case of Ramesh Sippy v. State of Maharashtra reported in AIR 1989 Bombay 260 (Paras 7 and 10), it was observed as under by the Hon'ble Bombay High Court. "7. It is by now well settled that in the matter of taxing statute the legislature enjoys a larger discretion in the matter of classification so long as it adheres to the fundamental principle underlying the doctrine of classification. The power of the legislature to c .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ettled that the micro classification will not vitiate the tax. Only because the tax is levied at a conveniently flat rate having regard to the various circumstances or as an easy means of collection and a variety of other pragmatic variables, to call it invalid, is an absurdity, especially because in fiscal matters large liberality must be extended to the Government having regard to the plurality of criteria which have to go into the fiscal success of the measure. (See AIR 1979 SC 321, Avinder S .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

atutory discrimination will not be set aside if a state of facts may reasonably be conceived by the Court to justify it. Tax laws have to respond closely to local needs and court's familiarity with these needs is likely to be limited. Therefore, the Court must be aware of its own remoteness and lack of familiarity with the local problems. Classification is dependent upon peculiar needs and specific difficulties of the community. The needs and the difficulties of a community, are constituted .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

Since Bombay is a commercial town and its population is larger than elsewhere in Maharashtra, video game parlours in Bombay are making more profits than the video game parlours elsewhere.Therefore since the takings in Bombay from the video game parlours are larger, a flat rate of duty at the rate of ₹ 500/- per month per machine is charged whereas having regard to the takings in places other than Bombay a flat rate of only ₹ 200/- per month per machine is charged. Thus a reasonable .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

observed that open air theaters and temporary theatres stand on a different footing from permanent theatres and that therefore different rates for admission in both the cases cannot make the classification arbitrary and unreasonable and violative of Article 14 of the Constitution of India. [9.20] It is further submitted that in the case of A. Suresh v. State of Tamil Nadu reported in AIR 1997 SC 1889 (Paras 13 and 16), similar argument was advanced before the Hon'ble Supreme Court that diffe .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

of State of Karnataka Drivein Enterprises reported in (2001)4 SCC 60 (Para 13), the Hon'ble Supreme Court upheld the classification between entertainment being provided by a Drivein Theatre and by a regular cinema film show in the following language. [9.22] It is further submitted that the Hon'ble Madras High Court in the case of Tata Sky Ltd. (Supra) quashed and set aside section 4I of the Tamil Nadu Entertainments Tax Act, 1939 levying tax on DTH Service inter alia on the ground that .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

under section 65(105)(ZK) of the Finance Act, 2001, is also liable to entertainment tax. It is submitted that merely because DTH operators by way of regulatory measures require a license under the Indian Telegraphy Act, 1885 to be granted by the Central Government and for that purpose, merely because DTH Broadcasting service is covered by Entry 31 List I, it cannot be contended that for all purposes, it is the Union Parliament which has legislative competence to enact a law and that therefore, t .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

s above submissions, he has heavily relied upon the decision of the Hon'ble Supreme Court in the case of State of West Bengal v. Kesoram Industries Ltd. reported in (2004)10 SCC 201 more particularly 129 of the said decision. [10.0] Now, so far as the challenge to Rules 3, 7, 11, 14 and 16 of the Rules, 2010 by some of the petitioners on the ground that they are ultra vires the Constitution of India and are arbitrary, capricious and violative of Articles 14, 19(1)(g) and 21 of the Constituti .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

in (1998)2 SCC 332. [10.1] It is submitted that the petitioners have grievances more particularly with reference to Rule 6 dealing with Certificate of Registration' and Rule 7 dealing with Security Deposits to be furnished' on obtaining Certificate of Registration. It is submitted that section 6C of the Act deals with registration, whereas section 7 of the Act lays down the provisions relating to Admission to Entertainment'. It is submitted that sub-section (3) of section 7 of the Ac .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

t there should be a rasonable relationship between levy of fee and the services rendered..... However, corelationship between the levy of the services rendered, is one of general character and not of mathematical exactitude." It is further submitted that in catena of decisions more particularly decisions referred to hereinabove the Hon'ble Supreme Court has observed and held that in considering the vires of subordinate legislation, one should start with presumption that it is intravires .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

liance of the Rules is likely to cause some inconvenience or hardship, the same cannot be invalid on that ground alone. [10.3] It is further submitted that similarly Rule 12 cannot be said to be violative of Article 21 of the Constitution of India merely because it empowers the authority under the Act to have free access to any place in respect of which, a Certificate of Registration is used, in execution of their duties under the Act. Making above submissions and relying upon above decisions, i .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

e petitioners to forthwith make the payment of the outstanding dues towards entertainment tax with the compliance of the current tax liabilities. [11.0] Heard learned advocates appearing on behalf of respective parties at length. At the outset it is required to be noted that what is prayed in the present Special Civil Applications is to declare section 6E of the Act, as amended by the Gujarat Entertainment Tax (Amendment) Act, 2009 insofar as it seeks to levy "entertainment tax" on Dir .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

as under: "2(dd) Direct-To-Home (DTH) Broadcasting Service means a system of distribution of multichannel television programmes in Ku Band by using Satellite system, by providing television signals direct to the subscriber's premises without passing through an intermediary such as cable operator. Explanation.For the purpose of this clause and clause (g), "Ku Band" ordinarily means the 11.7 - 12.7 GHz (Giga Hertz) frequency band which splits into two segments, viz. the first ha .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

network attached to it or cable television, for which persons are required to make payment by way of contribution or subscription or installation charges of connection charges or any other charges collected in any manner whatsoever. Explanation.For the purpose 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 cable television; .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

e of any instrument or contrivance which enables a person to get a normal or better view or hearing of the entertainment which, without the aid of such instrument or contrivance, such person would not get; (v) any payment for any purpose whatsoever connected with an entertainment which a person is required to make a condition of attending or continuing to attend the entertainment in addition to the payment, if any, for admission to the entertainment; (vi) any payment for admission of a motor veh .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

llation 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 which connects television set at a residential or nonresidential or any other place of connectionholder directly to the Satellite;" 2(gg) place of entertainment' includes a house, building, tent or any other place where the books of account, ticket books and other releva .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ver manner with the organization of the entertainment for any duration, or (iii) charged or entrusted or authorized with the work of admission to the entertainment, or (iiia) a company registered under the Companies Act, 1956, having license to provide Direct-To-Home (DTH) Broadcasting Service by the Government of India under section 4 of the Telegraph Act, 1885 and the Wireless Telegraphy Act, 1933 or; (iv) responsible for, or for the time being in charge of, management of providing of maintain .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

set, which enables the viewers to tune into multi channel television programmes in Ku Band, on payment, by the connectionholder, of the charges collected in any manner whatsoever by the proprietor; 6C (1) No proprietor providing an entertainment with the aid of any type of antenna or cable television or Direct-To-Home (DTH) Broadcasting Service shall carry on television exhibition without obtaining a valid Certificate of Registration from the prescribed officer. (2) The provisions of sub-section .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

stration as provided in this section within three months from the date of the commencement of the Gujarat Entertainments Tax (Amendment) Act, 2009, carries on television exhibition with the aid of Direct-To-Home (DTH) Broadcasting Service. (3) Every proprietor providing an entertainment with the aid of any type of antenna or cable television or Direct-To-Home (DTH) Broadcasting Service shall apply in such form, in such manner and on payment of such fee as may be prescribed to the prescribed offi .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

uency 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 transmission through Direct-To-Home (DTH) Broadcasting Service, a tax at the annual rate of ₹ 200 per television set for which such proprietor has provided Direct-To-Home (DTH) Broadcasting Service Connection. (2) Where the number of Direct-To-Home (DTH) connection holders increase in any month during the financial year, the proprie .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

all be construed accordingly." Relevant Rules which are under challenge are as under: "3. Application for Certificate of Registration.- A proprietor providing an entertainment with the aid of Direct to Home (DTH) Broadcasting Service shall apply for the Certificate of Registration under Section 6C in ProformaI in triplicate I and shall be renewable after every twelve months. 4. Granting of Certificate of Registration.- (1) The Commissioner may, on receipt of an application in ProformaI .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

To-Home (DTH) Broadcasting Service as per the guidelines issued by the Government of India from time to time. Explanation.- For the purpose of subrule (1) the expression antecedents' means the conduct of the applicant in relation to the regular payment of any tax or other dues payable by him. (2) The Certificate of Registration under section 6C shall be issued Proforma-2 and the Commissioner may prescribe special condition or conditions to be fulfilled, in the certificate. 5. Refusal to Gran .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

of Registration shall be rupees five thousand. 7. Security Deposits.- Every proprietor shall furnish as required under section 7, security amount of rupee ten lacs in form of Demand Draft to the Commissioner or shall deposit the National Savings Certificate or furnish Bank Guarantee of a Nationalized Bank in favour of Government of Gujarat, Information and Broadcasting Department on obtaining Certificate of Registration. 11. Applicability of other Acts. - The proprietor shall comply with such o .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ome (DTH) Broadcasting Service shall be given at all hours to the Commissioner or any officer authorized by the Commissioner, the Collector or any other officer as may be authorized by the State Government in the execution of their duties. 13. Receipt for payment. - The proprietor shall give a receipt to the connection holder for every payment and shall also furnish the connection number to such connection holder when he receives payment for installation charges or any other charges by whatsoeve .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

along with challan within fifteen days of the completion of the respective quarter: Provided that the return relating to the second and third quarter of the financial year 2009-10 shall be furnished within fifteen days from the publication of these rules in the official Gazette. (3) Every proprietor shall maintain a register in Proforma-6 for each financial year. 16. Order of Assessment. - (1) The assessment of tax in the respect of an entertainment shall be made within thirty days after the ret .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

section 3, 4, 6, 6A or 6B or any other provisions of this Act, there shall be levied and paid, by the proprietor of every Direct-To-Home (DTH) Broadcasting Service, to the State Government, the entertainments tax, per television set which receives 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 transmission through Direct-To-Home (DTH) Broadcasting Service, a tax at the annu .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

on, for which persons are required to make payment by way of contribution or subscription or installation charges of connection charges or any other charges collected in any manner whatsoever. As per the explanation to Section 2(e) of the Act, 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 cable television; or Direct-To-Home (DTH) Broadcas .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

within the meaning of "entertainment" and on providing Direct-To-Home (DTH) Broadcasting Service, the "entertainment tax" would be leviable or not. However, as such the aforesaid issue is now not res integra in view of the decision of the Hon'ble Supreme Court in the case of Purvi Communications (P) Ltd. (Supra). In the case before the Hon'ble Supreme Court, constitutionality of sections 4A and 4 of the W.B. EntertainmentcumAmusement Tax Act, 1982 was challenged. Befo .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

lative competence of the State Legislature under Entry 62 of List II of the 7th Schedule to the Constitution to make a law for the levy and collection of tax on such entertainments. In the aforesaid decision the Hon'ble Supreme Court has also further held that power of the State to levy tax on luxuries including taxes on entertainment, amusement etc. falling under Entry 62 of List II of the 7th Schedule is not fettered by the enactment of Cable TV Network (Regulation) Act, 1995 by Parliament .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

axable persons under the legislative field exclusively reserved for the State, is not prohibited by the Constitution of India. In the aforesaid decision, in paras 34 to 42, the Hon'ble Supreme Court has held as under: "34. In the instant case, respondent No.1 is engaged in receiving and providing TV signals to individual cable operators is liable to pay tax under sub-section (4a) of Section 4A of the Act. The expression "cable operator" has been defined by explanation to sub-s .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

after transmission of such signals by respondent No.1 to their subcable operators they, in turn, provide cable service for exhibition of such performance, film or programme to individual customers. The respondents have, in fact, admitted this position. The respondents are carrying on business as Multi System Operator (MSO) being engaged in receiving and providing TV signals only to the individual cable operators of various localities. 35. The Cable Television Networks (Regulation) Act, 1995, a c .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

from the power of taxation by the State legislature under Entry 62 of List II being a specific power, the power of taxation cannot be cut down or fettered by the general power or regulation as exercised by the Parliament in enacting the said 1995 Act. Under the Legislative field exclusively reserved for the State Legislature, the levy of tax by more than one statute on different taxable objects and taxable persons is not prohibited by the Constitution of India. The Bengal Amusement Act, 1922 and .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

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 4(a) of Sectio .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

h any electrical, electronic and mechanic device the signal of any performance, film or any other programme telecast and provides cable service directly to consumers or transmits signals to a subcable operator through a cable television network and otherwise controls or is responsible for the management and operation of a cable television network. The person who has been defined as cable operator exclusively for the purpose of levy and collection of entertainments tax has a direct and proximate .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

esponsible for the management and operation of cable television network against payment received or receivable by him. Therefore, a cable operator is the source of entertainment to the individual subscribers because, it is he who receives the signal of performance, film, and any programme which transmitted or given to a large number subcable operator (although they call them as cable operator). The viewers enjoy, or are entertained by such performance, film, or programme because of receiving and .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

red by and between them. This is clear from the below set out terms of the Franchise Agreement: Grant The NETWORK hereby grants to the FRANCHISEE and the FRANCHISEE accepts the right to receive signals through a Feeder Line for further instant transmission/communication in the TERRITORY on the terms and conditions set out in this agreement. Price The price payable by the FRANCHISEE for access to the signals provided by the NETWORK shall be as follows: (a) ₹ 25/per subscriber per month to b .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

n days of signing this agreement with full name, address and other information of relevance as required by the NETWORK. Subsequently any change in the subscriber list would be communicated to the NETWORK within seven days. The FRANCHISEE would submit complete information and not withhold the name of subscribers or declare less number of subscribers to the NETWORK. * * * (d) The FRANCHISEE is authorised to receive and immediately retransmit and/or communicate the signals of the NETWORK. Recording .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

future by the Govt. or any other statutory or regulatory body of the region. 36. Therefore, the respondents as a cable operator have direct and proximate nexus with the entertainments provided by them through their cable television network and, as such, they are the taxable person in respect of their gross receipts in relation to any month for providing entertainments to the individual viewers. Therefore, the respondents have a direct and proximate nexus with the entertainments presented to the .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

aid to the respondent, the franchisee shall pay a sum equivalent to three times of the amount that the franchisee has saved by not paying the requisite amount to the respondents in respect of such subscriber. 37. In our view, the respondents as a cable operator, 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 .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

t 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 has been made possible for the individual subscribers to cho .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

g entertainment to subscribers who are on his record. For the fact of offering or providing entertainment to the subscribers and/or viewers, the respondents receive charges, which are realised or collected by their franchise from the ultimate subscribers. Their franchise, called as subcable operator under the said 1982 Act having no independent role to offer or provide entertainments to the subscribers inasmuch as franchise have to depend entirely on the respondents communication network and thi .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

r words, what are taxed are the entertainments, which is very much within the ambit of Entry 62 of List II of Seventy Schedule. It is the respondents who as cable operator for the purpose of the said 1982 Act is engaged in the business of providing or offering entertainments which include showing of films, various serials, cricket matches and dramatic performances to the subscribers, and the tax is imposed on the act of offering such entertainments in this way to such subscribers and/or viewers. .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

declaration of liability to pay tax is concerned, the charging section does not suffer from any vagueness. The provision does not lead to any discrimination amongst persons. There is no scope of any discrimination in as much as either an owner, or person who having in possession of electrical, electronic or mechanical device receive signals and instantly transmits such signals of visual image and audio to a subcable operator for presentation of any performance, film or any other programme to the .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ning of the event of offering entertainments to the subscribers. The person on whom the legal liability to pay tax falls he has also been clearly and unambiguously mentioned in the charging section. The rates of tax has been sought to be specified by the notification. The measure of tax is the "gross receipt" on the basis of which the person is saddled with the liability to pay tax. There is no uncertainty or vagueness of the legislative scheme. The tax levied by sub-section (4a) of Se .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

slation 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 Seventh Schedule of 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 .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

wers end is the only role of subcable operator. It is, therefore, unconceivable that despite put forth the ready entertainment in the form of signal on the cable line, the cable operator cannot be said to be providing the entertainment within the meaning of Entry 62 of List II of the Seventh Schedule of the Constitution. So long as the State Act remains within the ambit of Entry 62 of List II and is not offending the provisions of Article 286 of the Constitution or the laws made thereunder, the .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

but also extends to sending visual images and audio and other information by means of telecommunication network for presentation to members of public. In the present case, respondent No.1 sends visual images and audio signals for presentation to the individual subscribers at various homes through their Feeder Line i.e. coaxial cable or any other device used for transmitting audio and visual signals in terms of clause 2 of the said agreement. The franchisee has access to the signals provided by .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

[11.4] Applying the ratio of the law laid down by the Hon'ble Supreme Court in the case of Purvi Communication (P) Ltd. and Ors. (Supra) 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 & .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ition or television exhibition with the aid of any type of antenna with a cable network attached to it or cable division or DTH Broadcasting service. Under the circumstances, the Direct-To-Home (DTH) service would fall within the meaning of "entertainment" and therefore, it is within the legislative competence of State legislature under Entry 62 of List II of the 7th Schedule to the Constitution of India. Under the circumstances, the contention on behalf of the petitioners that the Sta .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

India and such other Acts and the Rules made thereunder as are applicable to Direct-To-Home (DTH) Broadcasting Services and therefore, the Direct-To-Home (DTH) Broadcasting Services fall under the domain of the Union and as the Direct-To-Home (DTH) Broadcasting Services are included in the Service Tax Act and State therefore cannot impose entertainment tax on Direct-To-Home (DTH) Broadcasting Services, the field having been occupied by Entry 97 read with Entry 31 of List I of the Constitution o .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

so far as the reliance placed upon the decision of the Hon'ble Supreme Court in the case of Bharat Sanchar Nigam Limited (Supra) and the submissions made by the learned Counsel appearing on behalf of the respective petitioners with respect to the "Aspect Theory" and their attempt to distinguish the decision of the Hon'ble Supreme Court in the case of Puvi Communications (P) Ltd. and Ors. (Supra) from the decision of the Hon'ble Supreme Court in the case of Bharat Sanchar Ni .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ax on the Direct-To-Home (DTH) Broadcasting services and therefore, there shall be only one event and therefore, it will be double taxation on the same single event is concerned, the aforesaid submissions seems to be attractive but has no substance. 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 t .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ice tax was liable on the cost of sim card whereas, sales tax was also leviable on the sale price of sim card including value of activation charge. It was alleged that if the sim card is not sold by the assessee to the subscribers but is merely part of the service rendered by the service providers, then in that case, a sim card cannot be charged separately to sales tax, since it would ultimately depend upon the intention of the parties. In the aforesaid facts the Hon'ble Supreme Court dealt .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

other legislative power. Thus, the decision of the Hon'ble Supreme Court in the case of Bharat Sanchar Nigam Ltd. (Supra) would have no applicability of whatsoever nature. [11.7] At this stage the decision of the Kerala High Court in the case of All Kerala Chartered Accountants' Association (Supra) is required to be referred to wherein the constitutional validity of the service tax levied under the Finance Act, 1998 for taxable service rendered by practicing Chartered Accountants was cha .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

to the profession or the income derived therefrom and that therefore, as per the Aspect Theory, it is open to the different Legislatures to legislate with regard to different aspects of the same subject matter. Even the aforesaid issue is also directly covered by the decision of the Hon'ble Supreme Court in the case of Federation of Hotels & Restaurants Association of India (Supra). [11.8] Now, so far as the contention on behalf of the petitioners and challenge to the levy of entertainme .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

bove, the reliance is placed upon the decision of the Hon'ble Supreme Court in the case of Ashirwad Films (Supra) and the decision of the Madras High Court in the case of Tata Sky Ltd. rendered in Writ Petition Nos.25721/2011 and other cognate matters. Levy of entertainment tax at ₹ 6 per month from the cable operators and ₹ 200 per annum per connection from the DTH operators has been explained in the affidavit in reply. It is required to be noted that from the cable operators ch .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ting to legitimacy of economic or fiscal legislation. The legislature is entitled to a great deal of latitude in fiscal legislation. As observed and held by the Hon'ble Supreme Court in catena of decisions, the Court would interfere only where a clear infraction of constitutional provision is established. In catena of decisions the Hon'ble Supreme Court has expressed a note of caution that the burden is all the heavier when the legislation under attack is a taxing statute, since the powe .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

rt in catena of decisions has held that while deciding the constitutionality of the tax, oppressiveness; wisdom of advisability or expediency of a tax as measure of revenue; hardship; are not relevant. The Hon'ble Supreme Court has further observed and held that the Court is not concerned with the wisdom or unwisdom, justice or injustice of the law as the legislature is alive to the need of the people. It is further observed and held that in the field of taxation, the legislature greatly enj .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

he High Court that the provision may pass the test of classification but it would not pass the requirement of the second limb of Article 14 of the Constitution which ostracises arbitrariness, unreasonable and irrationality. The High Court failed to keep in mind the well defined limitations in consideration of the constitutional validity of a statute enacted by Parliament or a State Legislature. The statute enacted by Parliament or a State Legislature cannot be declared unconstitutional lightly. .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ake the law and (ii), that it does not take away or abridge any of the fundamental rights enumerated in Part III of the Constitution or any other constitutional provisions. 29. While dealing with constitutional validity of a taxation law enacted by Parliament or State Legislature, the court must have regard to the following principles: (i), there is always presumption in favour of constitutionality of a law made by Parliament or a State Legislature (ii), no enactment can be struck down by just s .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ute or economic law and (v), in the field of taxation, the Legislature enjoys greater latitude for classification." [11.11] In the case of State of Bihar vs. Sachchidanand Kishore Prasad Sinha and Ors. reported in AIR 1995 SC 885, the Hon'ble Supreme Court has observed that mere possibility of better classification is no ground to strike down classification made by statutory authority more particularly in taxing enactment. [11.12] In the case of M/s. Murthy Match Works vs. The Asstt. Co .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

th complex factors relating to the objects to be taxed, the quantum to be levied, the conditions subject to which the levy has to be made, the social and economic policies which the tax is designed to subserve, and what not. It is further observed that unconstitutionality and not unwisdom of a legislation is the narrow area of judicial review. [11.13] In the case of Sri Krishna vs. Town Area Committee, Chirgaon reported in AIR 1991 SC 2096, the Hon'ble Supreme Court in para 31 has observed a .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

gar and rice stating that they were not local produce but were imported from distant places and that the tax was levied only on the local produce which came from the neighbouring places courts cannot review the wisdom or advisability or expediency of a tax as the court has no concern with the policy of legislation, so long as they are not inconsistent with the provisions of the Constitution. It is only where there is abuse of its powers and transgression of the legislative function in levying a .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

mentioned in the byelaws it is not for the court to question it on the ground that some similar commodities or commodities arriving by rail or road were not subjected to the tax." [11.14] Now, so far as the reliance placed upon the decision of the Hon'ble Supreme Court in the case of Ashirwad Films (Supra) by the learned Counsel appearing on behalf of the petitioners in support of the challenge to the provisions of the Act on the ground that it is violative of Article 14 of the Constit .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

e case of Ashirwad Films (Supra) would not be applicable to the facts of the case on hand. However, in para 22, the Hon'ble Supreme Court has specifically stated that the Court is not concerned with the rate of tax. Now, so far as the reliance placed upon the decision of the Madras High Court in the case of Tata Sky Ltd. rendered in Writ Petition No.25721/2011 and other cognate matters is concerned, with respect, for the reasons above, we are not in agreement with the view taken by the Madra .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

its to be furnished" on obtaining certificate of registration. Section 6C of the Act deals with registration whereas Section 7 of the Act lays down the provisions relating to "Admission to Entertainment". Sub-section (3) of section 7 empowers the State Government to require the proprietor to give security for the payment of tax and other purposes. When to safeguard the future liability, Rule 7 provides for "Security Deposit", it cannot be said to be unconstitutional and/ .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

be invalidated on that ground alone. As observed by the Hon'ble Supreme Court in the case of Prafulla Kumar Das and Ors. vs. State of Orissa and Ors. reported in (2003)11 SCC 614, the provision of law cannot be declared unconstitutional solely on the ground of hardship. [12.3] Similarly, even Rule 12 of the Rules, 2010 also cannot be said to be violative of Article 14 of the Constitution of India as alleged. Rule 12 empowers the authorities under the Act to have free access to any place in r .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

 

 

 

 

 



|| Home || Acts and Rules || Notifications || Circulars || Schedules || Tariff || Forms || Case Laws || Manuals ||

|| About us || Contact us || Disclaimer || Terms of Use || Privacy Policy || TMI Database || Members || Site Map ||

© Taxmanagementindia.com [A unit of MS Knowledge Processing Pvt. Ltd.] All rights reserved.

Go to Mobile Version