TaxTMI 
TaxTMI 
2024 (8) TMI 391
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....20894/2015, W.P.(C) 12287/2015, W.P.(C) 1927/2016 & CM APPL. 8262/2016, W.P.(C) 5994/2016 & CM APPLs. 24660/2016 & 24661/2016, W.P.(C) 9153/2016 & CM APPLs. 37062/2016 & 37063/2016, W.P.(C) 9661/2016, W.P.(C) 10729/2016, W.P.(C) 10731/2016, W.P.(C) 2586/2017 & CM APPL 11183/2017 Present: For the Fashion Design Council of India : Mr. Arshad Hidayatullah, Sr. Adv., Mr Sandeep Sethi, Sr. Adv., along with Mr Jitendra Singh and Mr Anshumaan Sahni, Advs.. For the Petitioner: Mr A.S. Chandhiok, Sr Adv. with Ms Purva Kohli, Mr Deep Bisht and Ms Suryaprava Basu, Advs. in WP (C) 7465/2013 & 2586/2017 For the Petitioners : Mr Kamal Sawhney, Mr Krishna Rao and Ms Aakansha Wadhwani, Advs. in WP (C)Nos.4966/2013, 10729/2016 & 10731/2016. For the GNCTD : Mr Satyakam, ASC, with Mr Pradyut Kashyap, Advs. Mr Sameer Vashisht, ASC (Civil), GNCTD with Mr Aman Singh Bhadoria, Mr Prem Singh and Mr Arjun Gupta, Advs. in WP (C) 2563/2013, 3626/2015, 12287/2015, 10731/2016 & 2586/2017. RAJIV SHAKDHER, J.: I. PREFACE 1. The above-captioned matters have been placed before me due to the order dated 22.12.2017 passed by the Division Bench comprising Hon'ble Mr Justice S Ravindra Bhat and....
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.... actions are different, a brief description of them would be in order. II. BRIEF DESCRIPTION OF THE WRIT PETITIONERS FDCI 5. FDCI is a society registered under the Societies Registration Act of 1860. It has been established and constituted to promote the growth and development of the fashion industry concerning the manufacture, design, marketing, and distribution of apparel and other accessories. 6. Towards this end, the FDCI organises fashion shows. 6.1 On a few occasions, the Ministry of Textiles and other government bodies have supported FDCI in this regard under, what is known as, the 'Market Access Initiative'. 6.2 Significantly, the fashion shows organised by FDCI are not ticketed events [hereafter "non-ticketed events"]. Participation in fashion shows is solely through invites. 6.3 FDCI finances fashion shows, amongst other means, through sponsorships. The fashion show events are either directly sponsored or via partnership agreements entered into with the concerned sponsor. 6.4 In lieu of sponsorship amounts, FDCI offers certain rights such as the right to associate as a title sponsor or presenting partner; the right to have the sponsor's logo presen....
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....2014 26.03.2014 to 30.03.2014 19.06.2014 1,66,95,407/- 2886/2015 15.07.2014 to 19.07.2014 29.12.2014 50,32,500/- 3247/2015 13.03.2013 to 17.03.2013 29.12.2014 1,55,70,031/- 3308/2015 09.10.2013 to 13.10.2013 29.12.2014 1,43,22,958/- 3626/2015 31.07.2013 to 04.08.2013 29.12.2014 55,08,750/- 10.2 The remaining writ petitions preferred by FDCI seek to assail communications issued by GNCTD, among other things, calling upon it to deposit 15% of sponsorship receipts and other amounts received at the fashion show event, as alluded to in Section 2 (m) of the Entertainment Tax Act. 10.3 For convenience, the direction contained in the communication qua which FDCI is primarily aggrieved by, is extracted hereafter: "Sir, With reference to your letter dated 03.09.2014 on the subject cited above, I am directed to request you to furnish the following documents at the earliest for processing your application to issue [a] No Prohibitory Order: ... .... ... "5. Details of sponsorship received/receivable alongwith agreements and security of Entertainment Tax in the form of Demand Draft @15% of total spo....
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....A consequential direction is also sought to the effect that GNCTD should refund Rs.12,65,05,420/-paid by it under protest for the IPL matches held in the years 2010-2013. Den Soccer 13. Den Soccer is registered under the Companies Act, 1956. Football Sports Development Private Limited granted it franchisee rights, which enabled it to put together a football team to represent Delhi in the 'Indian Super League'. 13.1 As a tournament franchisee, Den Soccer was obligated to organise certain matches in Delhi. As a part of this arrangement, Den Soccer was to print, sell, and distribute tickets for the matches held in Delhi. 13.2 Den Soccer also approached sponsors. In return for sponsorship amounts, sponsors received benefits such as displaying the sponsors' company logo or trading name; exclusive or priority booking rights; and conferring the right to sponsor prizes and trophies. 13.3 The record discloses that Den Soccer sought approval from GNCTD via a letter dated 29.09.2014 for holding three (3) football matches in Delhi on 14.10.2014, 25.10.2014, and 29.10.2014. 13.4 As sought, GNCTD granted a "no prohibitory order", i.e., approval, via communication dated 01.10.20....
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....which revealed that entry to the event was available based on 'VIP invitations' [when entry should not have been allowed without tickets] and that Sportify had failed to disclose names of certain sponsors for the event such as Thums Up, Jaguar, Bright, Piccadilly, Shivnaresh, Babur, etcetera. 16.4 Sportify wrote back to GNCTD on 21.12.2015, stating that, given that the event was scheduled for that day, i.e., 21.12.2015, it would submit relevant documents and applicable taxes before the next event scheduled on 25.12.2015. Sportify also requested GNCTD issue a "No Objection Certificate" [NOC] for the event on 21.12.2015. 16.5 GNCTD approved the event on the same date, i.e., 21.12.2015, with certain conditions stipulated in the NOC. 17. Aggrieved by the notice dated 21.12.2015, Sportify instituted WP (C) 12287/2015. BCCI 18. BCCI is a society registered under 'The Tamil Nadu Societies Registration Act, 1975'. BCCI avers that it is the conceptualiser of the tournament called the Indian Premier League [IPL]. 18.1 It is BCCI's stand that for convening and holding IPL cricket matches, it grants franchisee rights to various entities. One such entity is GMR Sports, which a....
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.....05.2016. 24. In WP (C) 10731/2016, BCCI seeks a refund of Rs.69,07,895/- deposited towards Entertainment Tax on sponsorship, albeit under protest. BCCI paid this amount on sponsorship amounts received from Pepsi, Star Plus, Vodafone, United Spirits Limited, and Yes Bank for seventy-six (76) IPL matches held up until 10.05.2013. III. ISSUE 25. Given the backdrop and considering the framework of the writ actions filed by the five (5) entities before me, the critical issue that requires determination is whether sponsorship receipts constitute "payment for admission to entertainment". 25.1 The issue culled out above would require to be answered, inter alia, bearing in mind the scheme of the Entertainment Tax Act and the Rules, in particular, Sections 2 (aa), 2 (m), 2(u), 6, 7, 8, 9, 10, and 15 of the Entertainment Tax Act; Rules 6 to 8 and 11 of the 1997 Rules; and Forms 3, 5 and 6 appended to the 1997 Rules. IV. OVERVIEW OF THE DIVISION BENCH JUDGMENT 26. At this stage, it would help if the key findings returned by the learned Judges were culled to better appreciate the issue arising for consideration. Ravindra Bhat, J. 27. Bhat J. has returned the following f....
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....nsor, in effect, buys space to sell its products and further its business. A sponsor does not pay for gratification or to derive pleasure from the events; these are business transactions to be understood in the commercial sense. The sponsor is not the one getting entertained. (x) Under Section 6 (6) of the Entertainment Tax Act, taxes that are levied on payments made through "subscription, contribution, donation, or otherwise" are made for securing seats or any other accommodation in lieu of entertainment and not for furthering business prospects through advertising and other promotional activities. (xi) To tax sponsors who pay money to secure space for business purposes would be an incongruity under the Entertainment Tax Act. (xii) Mere admission to an entertainment event cannot result in Entertainment Tax being attracted to sponsorship amounts received by entities referred to above, i.e., FDCI, BCCI, GMR Sports, Den Sports, and Sportify as the said amounts are received in lieu of sponsors being given the right to advertise their products, brands and logos. (xiii) In particular, where BCCI and GMR Sports are concerned, admission to cricket match....
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....ayment for admission" under Section 2 (m) of the Entertainment Tax Act has the widest import as it is an inclusive definition. (ii) The Legislature has consciously used the expression "includes" in Sections 2 (m) and 2 (aa) of the Entertainment Tax Act. Section 2 (m), which defines "payment for admission" and Section 2 (aa), which defines "admission to an entertainment", seek to include all payments with an intent to curtail non-payment of Entertainment Tax. The object of the Entertainment Tax Act is to prevent tax avoidance by the adoption of disingenuous methods to funnel payments to organisers/proprietors of entertainment events. (iii) The "accommodation" made available for the display of products or logos, or even advertisements in a place of entertainment, in lieu of payment should be construed as "payment for admission to an entertainment". Similarly, any payment, including sponsorship amounts, which is connected with entertainment and, in lieu of which a person is allowed to attend/view the entertainment on display, would necessarily have to be construed as "payment for admission". (iv) Thus, if the provisions of Sections 2 (m) and 2 (aa) of the En....
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.... preferred against the judgment was withdrawn by FDCI with permission to approach the appropriate forum if the concerned authority passed an adverse order, pursuant to the remand direction issued by the coordinate Bench. (x) Section 6 (6) clarifies that the Legislature intended to give the broadest possible interpretation to the expression "payment for admission" obtaining in Section 2 (m) to avoid theft of tax. Section 6 (6) envisages the levy of Entertainment Tax on two types of payment, i.e., the payment that is "made wholly or partly", "in lumpsum" such as by way of "subscription, contribution donation", and secondly, on the amount of "payment for admission", "if any", "made otherwise". Thus, if Section 6 (6) is superimposed on Section 2 (m), it is clear that the charge is only levied on payments made otherwise, which would include benefits, services, etcetera, extended to organisers/proprietors of entertainment events. (xi) Explanation 2 is clarificatory and intends to prevent the entertainment industry from exploiting loopholes to avoid payment of taxes. (xii) Legislatures have the competence to legislate both retrospectively and prospectively, and ....
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..... and Sharma J. have largely captured and dealt with the contentions raised on both sides in their respective judgments. 31.1 Thus, for brevity, I would pen down the broad contours of the arguments advanced on behalf of the writ petitioners and GNCTD. 32. On behalf of the writ petitioners, the following submissions were made: 32.1 The first two (2) questions referred to this Court by the Division Bench comprising Bhat J. and Deepa Sharma J. primarily concern the constitutional validity of Explanation 2 added to Section 2 (m) of the Entertainment Tax Act. If the contention of GNCTD, that sponsorships received by the writ petitioners were amenable to Entertainment Tax even before Explanation 2 was brought in by virtue of Notification dated 01.10.2012, was taken to its logical extent, then there was no necessity of amending the Entertainment Tax Act. This issue was directly and correctly answered by Bhat J. as is reflected in paragraph seventy-seven (77) of his judgment. For convenience, paragraph seventy-seven (77) is extracted hereafter: "77. The argument that sponsored events and sponsorship per se were covered by the un-amended Act, is therefore, insubstantial an....
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.... Tax, in the case of sponsorship amounts, Entertainment Tax could not have been levied by GNCTD as sponsors were not being 'entertained'. Furthermore, since service tax and Entertainment Tax were levied on the gross amount at a given point in time, the Entertainment Tax Act should have provided a mechanism to bifurcate the amounts subject to such tax qua sponsorship. 32.6 GNCTD's attempt to impose and collect tax on 'sponsorship services' is illegal and ultra vires the Constitution. GNCTD's power to collect tax falls within the ambit of Entry 62 in List II of Schedule VII of the Constitution which, pre-and post-amendment, read as follows: 32.7 Pre-amendment: "Taxes on luxuries, including taxes on entertainments, amusements, betting and gambling." 32.8 Post-amendment: "Taxes on entertainments and amusements to the extent levied and collected by a Panchayat or a Municipality or a Regional Council or a District Council." 32.9 The tax incidence under Entry 62 of List II, Schedule VII, is on the person being entertained and not on the event sponsorship. Thus, the provisions of Section 2 (m) read with Explanation 2, whereby Entertainment Tax is sought to be collec....
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....o the provision, i.e., Section 2 (m), without including a corresponding charging provision in the Entertainment Tax Act. [S. Sundaram Pillai v. V.R. Pattabiraman, (1985) 1 SCC 591; CIT v. Mohmed Juned Dadani, (2013) 355 ITR 172]. 33.4 The Entertainment Tax Act provides no mechanism to levy and collect tax on sponsorship receipts. Thus, in the absence of any procedural machinery for assessment and tax levy, Explanation 2 appended to Section 2 (m) should be struck down as unconstitutional. 33.5 Rule 11 of the 1997 Rules requires information for ticketed events to be provided in Form 5. Likewise, the same Rule casts an obligation on the person or society desirous of holding entertainment to provide information, albeit for non-ticketed events in Form 6. Significantly, Form 5 does not require disclosure of information concerning sponsored events. 33.6 GNCTD has arbitrarily and unreasonably sought to levy Entertainment Tax with retrospective effect, i.e., 01.04.1998, pursuant to the issuance of Notification dated 01.10.2012. The well-established principle of law is that it looks forward and not backward. The doctrine of "Lex prospicit non respicit" enunciates this principle. [Se....
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....e contention advanced on behalf of the writ petitioners that sponsorship was covered under the Service Tax Act with effect from 01.05.2006 to demonstrate that GNCTD had no competence to legislate on the issue and levy tax qua the same is not an aspect which is referred to this Court for decision. This Court is required to rule on the points of divergence between the Judges who were part of the Division Bench, as is reflected in the order dated 22.12.2017. Since this aspect was not urged before the Division Bench, the Judges involved did not express a view, so they did not need to come to a different conclusion. 35.2 The submissions advanced on behalf of GNCTD are recorded in paragraphs 23 to 31 of the judgment dated 22.12.2017. 35.3 Section 2 (m) (i) defines the expression "payment for admission" as one which includes "any payment made by a person for seats or other accommodation in any form in a place of entertainment". The expressions "other accommodation in any form" and "in a place of entertainment" have a wide amplitude. Therefore, sponsorship amounts by the organisers/proprietors in lieu of accommodation provided for advertising products of sponsors would be amenable to....
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....expression "otherwise" indicates that payments made in kind through the supply of goods or rendering services are also susceptible to tax. 36. Thus, a conjoint reading of the provisions of Sections 2 (m), 6 (4), and 6 (6) would show that the net has been cast wide to bring within the fold of the expression "payment for admission", the maximum number of transactions to prevent tax avoidance. 36.1 Sponsors cannot be organisers/proprietors under Section 2 (o) of the Entertainment Tax Act. Therefore, the fee paid by sponsors in lieu of the right to participate would, undoubtedly, fall within the ambit of the expression "payment for admission" as appearing in Section 2 (m). Since Section 2 (m) is an inclusive definition, the Court should not curtail its reach. [See S.K. Gupta v. K.P. Jain, (1979) 3 SCC 54, Geeta Enterprises v. State of UP, (1983) 4 SCC 202, P. Kasilingam v. PSG College of Technology, 1995 Supp (2) SCC 348, N.D.P. Namboodripad v. Union of India, (2007) 4 SCC 502, Bharat Coop. Bank (Mumbai) Ltd. v. Employees Union, (2007) 4 SCC 685, Hamdard (Wakf) Laboratories v. Dy. Labour Commr., (2007) 5 SCC 281, CTO v. Rajasthan Taxchem Ltd., (2007) 3 SCC 124]. 36.2 The activ....
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....of Haryana, (2003) 1 SCC 561]. 36.8 The submission advanced on behalf of the writ petitioners that no charging provision is provided in the Entertainment Tax Act concerning sponsorship receipts is incorrect. A conjoint reading of sub-Sections (1), (4), (5), (6), and (7) of Section 6 would show that the charging section has been couched in the broadest possible terms to include all payments which could be lumpsum such as those made by way of "subscription, contribution, donation or even otherwise". Therefore, sponsorship receipts would stand included in the various forms and kinds of payment contemplated under Section 6 of the Entertainment Tax Act. 36.9 A closer look at Explanation 2 would show that it creates a deeming fiction by giving the expression "payment for admission" artificial meaning. 37. Given that the Legislature has created a legal fiction, the Court need not examine the true nature of sponsorship payments. The inquiry about whether sponsorship payments allow for admission to some persons qua an entertainment event has been obviated. In other words, Explanation 2 deems that a payment made by a sponsor is "payment for admission". This is a well-recognised meth....
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....Tax Act, then necessarily, to my mind, the impugned Explanation 2 appended to Section 2 (m) of the Entertainment Tax Act would be clarificatory and would have to be given retrospective effect. This would also answer the specific objection raised by the writ petitioners that there is no charging provision and hence, the attempt to impose Entertainment Tax should fail. 40. Second, even if one were to conclude that Section 6, read in its entirety, included sponsorship receipts as one of the modes of payment for admission to an entertainment event, would the imposition of Entertainment Tax fail in the absence of an assessment and collection mechanism qua such receipts. 41. There can also be no cavil concerning the proposition that for a valid tax to be levied, it should have the following attributes: i) First, the subject statute should advert to the taxable event, i.e., the event that attracts the levy. ii) Second, the statute should unambiguously identify the person on whom tax is imposed and who is obliged to remit the tax. iii) Third, the rate at which tax would be imposed. iv) Fourth, the measure, i.e., the value to which the tax rate woul....
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....bject to the provisions of this Act, there shall be levied and paid on all payments for admission to any entertainment, other than an entertainment to which section 7 applies, an Entertainment Tax at such rate not exceeding one hundred per cent of each such payment as the Government may from time to time notify in this behalf, and the tax shall be collected by the proprietor from the person making the payment for admission and paid to the Government in the manner prescribed. ... ... ... (4) If in any entertainment, referred to in sub-section (1), to which admission is generally on payment, any person is admitted free of charge or on a concessional rate, the same amount of tax shall be payable as if such person was admitted on full payment. (5) Where the admission to a place of entertainment is generally on payment, and if any entertainment is held in lieu of the regular entertainment programme without payment of admission or with payment of admission less than what would have been paid in the normal course, the proprietor shall be liable to pay tax which would have been payable in a normal course at full house capacity or the tax for the programme held in....
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....ub-Clause (ii) of the same Section. Thus, a person could seek to get entertained by paying money, say by booking seats or accommodation in a place of entertainment which would be accessible by the public at large; the same person could also get entertained by making payment for availing cable network services. [See Section 2 (m) (i) and ii)]. 46. Section 2 (m), as noticed above, also seeks to cast the taxation net wide by including any and every kind of payment irrespective of the purpose as long as it is "connected with an entertainment" event and that such payment forms a "condition of attending, or continuing to attend" the said event. [See 2 (m) (iv)]. 46.1 Clauses (iii) and (v) of Section 2 (m) take into account specific situations such as payment made towards a "loan or use of any instrument or contrivance" to enable "a person to get a normal or better view or hearing or enjoyment of entertainment" without which she/he would be deprived of the same; or payment made by a person "who having been admitted to one part of a place of entertainment is subsequently admitted to another part". 46.2 Similarly, payments made in the form of "contribution, subscription" towards "i....
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....50. The argument advanced on behalf of GNCTD that the expression payment made for other accommodation in a place of entertainment [as captured in Section 2 (m) (i)] would include a place allocated for advertising a sponsor's product, papers over the fact that that the expression "other accommodation" is placed alongside the expression "seats" and therefore, should, in a certain sense, take colour from the said expression. If one were to take recourse to the literal meaning of the word "accommodation", to my mind, it would lead to absurdity and, therefore, cannot be accorded the meaning that GNCTD seeks to place on the said expression. The maxim noscitur a sociis would, in my opinion, apply. The word "accommodation", which follows the word "seat", should be used in a cognate sense. Otherwise, it would give unintended width to the provision and, consequently, the statute. [See Godfrey Phillips India Ltd. v. State of UP, (2005) 2 SCC 515, Ahmedabad (P) Primary Teachers' Assn. v. Administrative Officer, (2004) 1 SCC 755 and Pardeep Aggarbatti v. State of Punjab, (1997) 8 SCC 511]. 50.1 The Legislature, noticing this gap in the statute, took measures [as it turned out, half-measu....
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....s within the fold of the Entertainment Tax Act, it chose to amend the statute. Consequently, Section 7 was inserted by Amendment Act, 2009 on 05.01.2010, albeit, with effect from 01.02.2010. The relevant part of Section 7 is extracted hereafter: "[Tax on cable, video service and direct-to-home (DTH) service] [(1) Subject to the provisions of this Act, there shall be levied and paid an Entertainment Tax on all payments for admission to an entertainment through a direct-to-home (DTH) or through a cable television network with addressable system or otherwise, other than entertainment to which section 6 applies, at such rates not exceeding rupees six hundred for every subscriber for every year as the Government may, from time to time, notify in this behalf, which shall be collected by the proprietor and paid to the Government in the manner prescribed.]" 52.2 Alongside Section 7, amendments were made to Section 2 with the insertion of Clauses (a), (aa), (c), (fa), (fb), (ha), (ka), (pa), (pb) and (s). These Clauses define "addressable system", "admission to an entertainment", "assessing authority", "broadcaster", "cable operator", "direct-to-home (DTH) service", "mu....
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....event, in this case, sponsorship amounts, were not intended to be taxed by the Legislature. In other words, the Legislature was required to make an amendment not only in the definition provision, i.e., Section 2 (m) [although carried out via Explanation 2], but also necessary amendments in the charging provision. In this context, the following observations made in CIT v. BC. Srinivasa Setty, (1981) 2 SCC 460, being apposite, are extracted hereafter: "The character of the computation provisions in each case bears a relationship to the nature of the charge. Thus, the charging section and the computation provisions together constitute an integrated code. When there is a case to which computation provisions cannot apply at all, it is evident that such a case was not intended to fall within the charging section." [Emphasis is ours] 55. Therefore, in my view, the writ actions should succeed on the lone ground that the Legislature did not carry out necessary amendments to bring sponsorship amounts within the remit of the Entertainment Tax Act. 56. The impugned Notification dated 01.10.2012, which amended the Entertainment Tax Act by adding Explanation 2 to Section ....
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....dustry members, received sponsorships to enable sponsors to advertise their products, brands, and logos. Likewise, GMR Sports, Den Soccer, Sportify, and BCCI received amounts from sponsors for the right to advertise their goods, products, brands, and logos at sporting events. 58.1 Fashion shows are events that designers ordinarily organise to showcase their upcoming clothing and/or accessories to create interest in the buyers. A common-sense approach would have me hold that fashion shows are not entertainment events. However, even if one were to accept the argument advanced on behalf of GNCTD, that fashion shows are entertainment events, an argument which is founded on the judgment dated 30.04.2012 passed by the Division Bench in FDCI's case and the observations made by the Supreme Court in the Amit Kumar case, sponsorship amounts made over to FDCI, i.e., the organiser would not certainly come within the ambit of the Entertainment Tax Act as the purpose and the motivation for sponsoring these events was only to further their business interest. This would be true of other organisers/writ petitioners referred to above. 59. In common parlance, and in the context of the present c....
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.... is sought. 61.3 In contrast, Form 6 seeks information on sponsors of non-ticketed events in which admission to entertainment is exclusively via invitation. Among other things, the information sought from the persons who own or manage such events concerning sponsors are the following: i) names of the sponsors; ii) the amount sponsored by them; and iii) name of advertiser and amount received from them. [See serial no. 10 and 11 of Form 6]. 61.4 Coupled with the above, based on the information sought against serial number 18 in Form 6 concerning arrears of tax, if any, to be deposited in respect of shows previously held, it is urged on behalf of GNCTD that the Legislature always intended to impose tax on sponsorship receipts. 61.5 In my view, this is a misreading of both Rule 11 and Form 6. The information against serial number 18, particularly, and other serial numbers, seeks to take care of a situation where the same organisers hold ticketed and non-ticketed events. As noticed above, some writ petitioners such as GMR Sports, Den Soccer, and Sportify issue tickets and complimentary passes. Concededly, both on tickets and complimentary passes, Ente....