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TaxTMI 
TaxTMI 
TaxTMI 
2015 (4) TMI 424
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....sent cases for the assessment period September 2006 passed an impugned assessment order dated 25/6/2009 imposing the entertainment tax of Rs. 7,49,900/- @ Rs. 20/- per subscriber for 37495 subscribers and interest on such entertainment tax for the delay in payment of the same at Rs. 4,86,187/- totalling to Rs. 12,36,087/-. The assessing authority held that in view of the amended definitions and charging provisions contained in Section 4AA of the Act of 1957, the proprietor of the Cable TV Network providing cable service shall also be liable to pay the entertainment tax 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 and since according to the Assessing Authority in view of the latest Supreme Court decision available at that time in the case of State of State of West Bengal vs. M/s Purvi Communication & Ors. - (2005) 3 SCC 711, the assessee M/s Sky Media Pvt. Ltd., a Multi System Operator (MSO) fell within the said definition of `Proprietor' providing the satellite signals to the cable operators, who in turn transmit such signals to the ultimate viewers/consumers through the....
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....f law arising out of the order of the Tax Board and the assessing authority below deserves to be decided by this Court in the present set of revision petitions and accordingly, the following question of law is framed for consideration by this Court:- "Whether the assessee M/s Sky Media (P) Ltd. Jodhpur, a Multi System Operator (MSO), falls within the definition of `Proprietor' and the charging provision of the Rajasthan Entertainments & Advertisements 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." 6. Learned counsel for the assessee - M/s Sky Media Pvt. Ltd., Mr. Manish Shishodia submitted that the judgment of the Hon'ble Supreme Court in the case of M/s Purvi Communication (supra), which dealt with the provisions of West Bengal Entertainment cum Amusement Tax Act, 1982 would not cover the present cases because in that Act a separate definition of `Cable Operator' and `Sub-Cable Operator' was incorporated, whereas, no such separate definitions of Multi System Operator, C....
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....Supreme Court in the judgment of M/s Purvi Communication (supra) but it was further reiterated, explained and followed in the case of Indusind Media & Communication Ltd. Vs. Mamlatdar & ors - JT 2011 (8) SC 62 / MANU/SC/0944/2011 in which the Hon'ble Supreme Court clearly held and followed the previous view of three judges bench judgment in the case of M/s Purvi Communication (supra) and the two judges bench held that the Multi System Operators, who transmit the signals to the cable operators and in turn, the cable operators transmit signals to the subscribers, would clearly fall within the definition of `Proprietor' as per the provisions of West Bengal Act, as they are connected to the organization of the entertainment. 10. Learned counsel for the Revenue, Mr. Vineet Mathur submitted that even in the case of M/s Purvi Communication (supra) on a detailed discussion in para 35 of the judgment, the Hon'ble Supreme Court clearly held that the activity of providing TV signals to the cable operators, who are called here the Multi System Operators, as defined under clause 4(a) of the West Bengal Act and the cable operators providing signals to sub-cable operators also separa....
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....ve heard the learned counsels at length and perused the statutory provisions of law and the case laws referred and dispassionately considered the submissions made the bar. 14. Before dealing with the rival submissions, it is found appropriate to quote the relevant definitions, particularly, under the amended provisions of Rajasthan Entertainment & Advertisement Tax Act, 1957 to appreciate the controversy in hand. The definitions of `Cable Service' under sub-Section (3AA), `Cable Television Network' under sub-Section (3AAA), `Direct to Home Broadcasting Service' under sub-Section (4A), `Entertainment' under sub-Section (5), `Entertainment Tax' under sub-section (6), `Proprietor' under sub-section (8) `Subscriber' under sub-section (11-A) of Section 3 and the charging provision Section 4AA are quoted below for ready reference:- "(3AA) "Cable Service" means the transmission by cables of programme including retransmission by cable of any broadcast television signals; (3AAA) "Cable Television Network" means any system consisting of a set of closed transmission paths and associated signal generation/control and distribution equipment, designed to provide ca....
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....ch rates not exceeding twenty percent of the payment for admission for every subscriber, as the State Government may, notify in this behalf. (2) Notwithstanding anything contained in sub- section (1), the State Government may fix the rates of tax for the tax payable under this section a fixed amount, as may be notified but not exceeding rupees fity, per subscriber per month or part thereof. (3) Nothing in sub section (1) shall preclude the State Government from notifying different rates of entertainment tax for house hold or for different categories of hotels. (4) Where the subscriber is a hotel or a restaurant, 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." 15. From the bare reading of the aforesaid charging provision read with the definition clause, it is true that there is no separate definition of the Multi System Operators like the present assessee, cable operators, sub-cable operators are found....
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....aid central enactment is separate and distinct 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 the West Bengal Entertainment and Luxurious (Hostel and Restaurants) Act, 1972 are two statutes which have been enacted under the same legislature field i.e. Entry 62 of List II of Seventh Schedule to the Constitution of India, and the two statutes apply admittedly to levy of tax on amusements, entertainments and luxuries in their respective area but the area of application of the said 1982 Act is different as would evident from the provisions of 1982 Act and the 1972 Act as aforesaid. The said 1982 Act was, for the first time, enacted by the State Legislature in 1982 and its area of application was initially confined to levy and collection of ....
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....y other device by the respondents. No entertainment can be presented to the viewers unless a cable operator transmits the video and audio signals to a sub-cable operator for instantaneous presentation of any performance, film or any programme on their T.V. screen. The sub-cable operators are mere franchisees who receives signals for transmission to the viewers only on payment of price promised or paid in terms of agreements entered and between them." 16. The aforesaid judgment in the case of M/s Purvi Communication came to the followed by the two Judges bench in the case of Indusind Media & Communication Ltd. & anr. Vs. Mamlatdar & Ors., specifically dealing with the appellants, who were Multi System Operators like the present assessee before this Court and the two issues raised before the Supreme Court in the case of Indusind case (supra) came to be answered in the following manner by the Supreme Court in para 10. "10. Two issues arise for our consideration in the present appeals viz.: i. Whether the Appellants, who are Multi System Operators, are liable to pay Entertainment Tax, and ii. Whether the facts and circumstances of the case warrant imposition of penalty on the Appell....
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....cts and Reasons, is by way of clarification to include the DTH service as a new technology and method within the purview of the Act, by which entertainment is provided sitting at home. Our homes have taken the place of cinema hall or theater, and the paper ticket has been substituted by subscription money. For viewing channels through DTH connection by either prepaid or post paid payments made through cash or credit cards, or by any other method, are all payments for admission to entertainment. The entertainment tax is to be collected by the proprietor and paid to the State Government in the manner prescribed. The proprietor includes in relation to the entertainment any person connected with the organization of the entertainment, or charges with the work of admission to the entertainment or responsible for, or for the time being in charge of, the management thereof under Section 2 (m) of the Act. The petitioners by delivering entertainment directly to the homes of individual subscribes down link the signals from various satellites of various TV Channels on their stations. They uplink the signals thereafter to their own Ku band designated transponders, which are then transmitted to....
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....us, the MSO is undoubtedly an integral part of the chain of persons or agencies or organization providing such entertainment and since the definition of the "Proprietor" clearly covers such an assessee, therefore, it cannot be contended, as has been contended by the assessee, that in the absence of a specific definition in the definition clause of cable operator or Multi System Operator, they would not fall within the tax net. 19. There is another angle to counter the argument of learned counsel for the assessee. While reading the definition of `Subscriber' in clause (11A), as quoted above, one may note that the proviso to the said definition clearly provides that in case of further transmission of signals of cable TV network, each room or premises where signals of cable television network are transmitted shall be treated as a subscriber. Therefore, even if the present assessee MSO may not have a privity of contract with the ultimate end user but qua his cable operator or sub-cable operator, who is a "subscriber" qua MSO, a service provider or entertainment provider or a proprietor providing such entertainment. Thus, by a harmonious reading of definitions, the chain of agencie....