2019 (1) TMI 1706

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....ising at by receiving and then providing television signals to cable operators of various localities who in turn further transmit the same to their subscribers. 4. State Legislature enacted Madhya Pradesh Vilasita, Manoranjan, Amod Evam Vigyapan Kar Adhiniyam, 2011 with effect from April 1, 2011, to levy tax on luxuries, entertainments, amusements and advertisements exhibited in the State of Madhya Pradesh. 5. As per section 3 thereof every hotelier or proprietor whose turnover during a period of twelve months immediately preceding the commencement of the Act of 2011 exceeds rupees five lacs incurs liability to pay tax in respect of any advertisement, luxury or entertainment provided by him in Madhya Pradesh. Sub-section (2) of section 3 of the Act further stipulates that every hotelier or proprietor to whom sub-section (1) does not apply, shall be liable to pay tax under this Act in respect of any advertisement, luxury or entertainment provided by him in Madhya Pradesh with effect from the date on which his turnover in a year first exceeds (rupees ten lacs) but for the purpose of assessment of the tax for that year, only so much of his, turnover as is in excess of such limit....

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....d the penalty affirming the applicability of sub-section (6) of section 20 of the VAT Act, 2002. It held : 12. The question is whether the authorities and the Board are justified in invoking sub-section (6) of section 20 of the VAT Act, 2002 for non-registration under the Act of 2011. 13. Article 265 of the Constitution of India provides for "No tax shall be levied or collected except by authority of law." Article 366(28) defines the expression "taxation" and "tax" as "taxation" includes the imposition of any tax or impost whether general or local or special and "tax" shall be construed accordingly. 14. In Godfrey Phillips India Ltd. v. State of U. P. [2005] 139 STC 537 (SC); [2005] 4 RC 186 ; [2005] 2 SCC 515, a tax on "luxuries" in entry 62 of List II of the Seventh Schedule to the Constitution of India was construed to mean a tax on "the activity of enjoyment or indulgence in that which is costly or which is generally recognized as being beyond the necessary requirements of an average member of society". It is held (para 96, page 576 in 139 STC) : "93. . . . In our judgment, the word 'luxuries' in the entry refers to activities of indulgence, enjoyment ....

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.... 2011 Act, the applicability of 2002 Act has been subjected to the provisions of the 2011 Act. Section 8 of the 2011 Act envisages : "8. Subject to the provisions of this Act and the rules made there under, the provisions of the VAT Act and the rules made, order and notifications issued thereunder, including the provisions relating to returns, assessment, self-assessment, reassessment, payment and recovery of tax, accounts, detection and prevention of tax evasion, refund, appeal, revision, rectification, offences and penalties and other miscellaneous matter, shall mutatis mutandis apply to a hotelier or proprietor in respect of tax, interest or penalty levied and payable under this Act as if these provisions were mutatis mutandis incorporated in this Act, and it shall be deemed that the rules made and orders and notifications issued under those provisions were mutatis mutandis made or issued under the relevant provisions as so incorporated in this Act." 19. When an applicability of an Act is subjected to the provisions of another Act it conveys : "70. . . . the idea of a provision yielding place to another provision or other provisions subject to which it is ma....

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....n 'subject to the provisions of section 31' are either ornamental or inconsequential nor do we have any hesitation in holding that right of appeal under section 30 can be exercised only in the manner and to the extent it is provided for in section 31 to which the said right is made subject." 22. In the case at hand evidently, the provisions of the Act of 2002 are subjected to that of the provisions of 2011 as is evident from section 8 of the Act of 2011 which rules out the applicability of sub-section (6) of section 20 of the Act of 2002. 23. When the impugned orders tested on the anvil of above analysis, the order directing for imposition of penalty under sub-section (6) of section 20 for violation of section 10 of the Act of 2011 cannot be approved of. 24. Consequently, the orders passed by assessing officer, appellate authority and Appellate Board for imposition of penalty under sub-section (6) of section 20 of the Act of 2002 for non-registration under the Act of 2011 are set aside. The matter is relegated to assessing officer for fresh consideration under sub-section (3) of section 10 of the Act of 2011. 25. Appeal stands disposed of finally in above terms.....

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....¨à¤¿à¤°à¥à¤§à¤¾à¤°à¤£ अधिकारी द्वारा कर देयता के निर्धारण के परिप्रेक्ष्य में रखा गया है। दूसरे शब्दों में कर देयता न होने की स्थिति में धारा 20(6)(ए) के अधीन कोई शास्ति देय नहीं है। स्पष्ट है कि दोनों शास्तियों का दायित्व भिन्न-भिन्न परिस्थिति....