TMI Blog1984 (2) TMI 53X X X X Extracts X X X X X X X X Extracts X X X X ..... ame a licence is issued in respect of any television set under the Indian Wireless Telegraphy Act, 1933, and includes a person, who is, for the time being, found in possession of any television set irrespective of its size or whether it is a black and white set or a colour set, and irrespective of the fact whether the person holds such licence or not. Section 6(1) of the Act exempts the Central and State Governments, the Corporation of Calcutta, or any Municipality, Zilla Parishad, Panchayat Samiti or Gram Panchayat from the payment of such tax. Sub-s. (2) of the said section similarly exempts educational institutions recognised by State Government or by an officer authorised by the State Government in this behalf when an application is made to the prescribed authority for such exemption. Sub-s. (5) of S. 6, which is important for the purpose of this case, makes provisions for exempting from payment of the tax to a holder of a television set for the period the set is not in use. It would be advantageous to set out this sub-section in toto which reads thus: " Any holder of a television set, who has paid the tax in respect of that set and claims that he shall not use or he has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s under the expression " intercourse " mentioned in article 301 of the Constitution and as such is immune from State taxation. (e) Television is a public utility service and a private person who holds a television set for his own personal use does not carry on any trade or business with such a set nor does he derive any monetary benefit from such set, he being the ultimate consumer of the programme which is derived through the set and, as such, the Act is beyond the taxing power of the State Legislature. Mr. R. N. Bajoria in opposing the rule contended that the impugned legislation is valid and is within the legislative competence of the State Legislature as it is covered under Entry 62 of List 11 of the Seventh Schedule to the Constitution. According to Mr. Bajoria, Entry 31 of List has no relevance as the Act is a taxation measure seeking to levy tax on luxury, entertainment or amusement. Mr. Bajoria then submitted that the omission of the word " luxury " from the title of the Act has no relevance as the entries in the different lists in the Seventh Schedule are mere heads or topics of legislation and the widest possible meaning should be given to the words used therein. In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Farmers can through the media of television, visually see and learn how to grow more crops on their land, what fertilisers to use and how to deal with pests or pestilence whenever they occur. As such, television as a mass media and a means of mass communication, must be allowed to grow and expand for the general upliftment of a developing country, such as ours. Television has certainly bypassed the radio and the cinema as the most effective media of communication, entertainment and education. With the setting up of more and more T.V. stations with a corresponding increase in the number of television sets, a natural consequence was bound to follow, viz., television was sought to be made a source for increasing the State's revenue. The ball was set rolling by the State of Maharashtra with the enactment of the Maharashtra Luxury-cum-Entertainment Tax on Holders of Television Set Act, 1982. The constitutional validity of this Act was challenged by a number of writ petitions filed in the Bombay High Court. These writ petitions were disposed of by a Division Bench of the Bombay High Court which upheld the vires of the Maharashtra Act, inter alia, on the ground that a T.V. set was an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The Supreme Court of the United States, by one of its ablest members, has given a plain and comprehensive exposition of the term 'commerce' less general than the word 'intercourse', used without qualification, but sufficient to include all the ramifications of commerce. Says Marshall C.J. : 'It describes the commercial intercourse between nations and parts of nations in all of its branches, and is regulated by prescribing rules for carrying on that intercourse'. The telegraph constitutes a branch of commercial intercourse. 'So interwoven has the custom of communication by telegraph become with trade and traffic, that separates itself without serious disturbance of vast trade relations and financial transactions would be task as difficult as to cut the pound of flesh without a drop of blood.' Western Union Tel. Co. v. Atlantic Pacific States Tel. Co. 5 Nov. 102, 108." The purport of inter-State trade or intercourse also came up for consideration before the United States' Supreme Court in the case of Fisher's Blend Station v. The Tax Commission of the State of Washington [1935] 80 Lawyer's Edition 956. In this case, the United States' Supreme Court was concerned with the questio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has been separately mentioned in art. 301 of our Constitution, in juxtaposition with the word 'commerce', it would refer to non-commercial intercourse. As observed by the Privy Council, it refers to the 'freedom of an individual' to cross the barrier and have dealings with the citizens of another part of the country, irrespective of the movement of goods or merchandise: and as the American Supreme Court has held, the medium of such dealings may be speech, music, radio, television and the like. It is thus clear that television can be brought within the meaning of the word " intercourse " as used in art. 301 of the Constitution. The next question that arises is whether the Act is violative of art. 301 and, if so, whether it can be struck down on that ground ? The appellants in the Supreme Court Case of Atiabari Tea Co. Ltd. v. State of Assam, AIR 1961 SC 232, who were growers of tea in the State of Assam and elsewhere and had to carry their tea to the auction houses in Calcutta for sale in this country or for export, challenged the validity of the Assam Taxation (on Goods carried by Roads or Inland Waterways) Act, 1954, on the ground that the Act and the Rules and Notification ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and its validity can be sustained only if it satisfies the requirements of art. 302 or art. 304 of Part XIII." Television being an intercourse within the meaning of art. 301 of the Constitution, the West Bengal Legislature would be competent to bring restrictive taxes subject to the provisions of Chapter XIII and in particular to the provision of article 304 which reads thus : " Notwithstanding anything in art. 301 or article 303, the Legislature of a State may by law-- (a) impose on goods imported from other States or the Union territories any tax to which similar goods manufactured or produced in that State are subject, so, however, as not to discriminate between goods so imported and goods so manufactured or produced; and (b) impose such reasonable restrictions on the freedom of trade, commerce or intercourse with or within that State as may be required in the public interest; Provided that no Bill or amendment for the purposes of clause (b) shall be introduced or moved in the Legislature of a State without the previous sanction of the President. The Act cannot be brought within the purview of art. 304(a); the question, therefore, arises as to whether the vali ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Act cannot be brought either under sub-clause (a) or (b) of art. 301 of the Constitution. By the impugned Act, tax is not actually sought to be imposed upon a television set but upon the programme which is telecast through the set. This is clear on a reference to sub-clause (5) of S. 6 of the Act which entitles a holder to the refund of the tax when the set is not in actual use. In the result, I must hold that since the Act affects the freedom of intercourse through the media of television guaranteed under art. 301 of the Constitution and since the State's power of taxation is derived from art. 245 and the said power is subject to the other provisions of the Constitution including those of Chapter XIII, the Act must be declared to be ultra vires and void. In view of this conclusion, it is unnecessary for me to enter into the other points urged in support or in challenge in this rule nor is it necessary to refer to the other decisions which have been cited. The, rule is, accordingly, made absolute. There will be no order as to costs. If any holder of a television set has paid any tax under the Act, the authorities concerned are directed to refund the same as expeditiously as ..... X X X X Extracts X X X X X X X X Extracts X X X X
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