2019 (4) TMI 2106 - HC - Indian Laws

Constitutional Validity of provisions of Section 3AA of the Bihar Entertainment Tax Act, 1948 - It is the complaint of the petitioner that on some misconception, mis-appreciation and misconstruction of the legal position that the respondents started coercing the petitioner to taxation, with effect from the 4th quarter of the Assessment Year 2015-16 (01.01.2016 to 31.03.2016) and under the assessment orders put to challenge they have realized such amount which is even greater than the amount assessed for the period in question. HELD THAT - Section 3AA of the Act opens with a non-obstante clause to have an overriding effect over the other provisions of the Act to levy a consolidated amount of tax not exceeding Rs. One hundred and not below Rs. Ten, payable every month for each connection given to a subscriber by the proprietor of any cable service or cable television network and which amount of tax is to be paid by the proprietor of an entertainment to the State Government - The enabling power vested in the Assessing Authority under the Act is to be exercised in the manner prescribed by the Rules and which have since been framed vide rules 19A and 23A of the Rules . Section 3AA of the Act read alongside rules 19A and 23A of the Rules makes the taxing event at the point where the entertainment reaches a subscriber through the cables. Now whether it is the MSO like the petitioner who not only is providing such entertainment to the subscriber directly but also through the Local Cable Operators or the Local Cable Operators, when providing such service to the subscribers, is to be termed as a proprietor , is a matter of adjudication in the backdrop of the statutory provisions - there are no confusion that the assessment orders passed for the assessment years put to question in this writ petition lacks foundation because it is not based on the number of subscribers rather is based upon the number of set top boxes, the details of which was available in the register of the petitioner. This fact situation that the assessment orders are based on set top boxes and are not relatable to the subscribers as mandated under section 3AA of the Act read alongside the Rules framed thereunder, is not in contest rather is an admitted position. The Assessing Authority has failed in his discharge of functions as a quasi-judicial authority to assess the tax in the manner provided under the Act rather he has taken a short route to extract money from the petitioner by resorting to special mode of recovery without even identifying the subscribers for the purpose of such levy - the assessment orders passed by the Assistant Commissioner, Commercial Taxes, Patna North Circle, Patna for the Assessment year 2015-16 (4th quarter i.e. 01.01.2016 to 31.03.2016), Assessment year 2016-17 (all 4 quarters) and for the 1st quarter of the Assessment year 2017-18 (01.04.2017 to 30.06.2017) some of which are impugned at Annexure 2 series together with the demand notice bearing No.298 dated 26.03.2019 impugned at Annexure 16 to the writ petition are quashed. The matter is remitted to the Assistant Commissioner, Commercial Taxes, Northern Circle, Patna to proceed afresh and for its disposal in accordance with law.

Summary

Issues Involved:
1. Vires of Section 3AA of the Bihar Entertainment Tax Act, 1948.
2. Quashing of assessment orders for specific periods.
3. Determination of tax liability for Multi System Operators (MSOs) versus Local Cable Operators (LCOs).
4. Basis of tax assessment (subscribers vs. set top boxes).

Issue-wise Detailed Analysis:

1. Vires of Section 3AA of the Bihar Entertainment Tax Act, 1948:
The petitioner initially questioned the constitutionality of Section 3AA of the Act but chose not to press this relief. The court noted that although the language of Section 3AA is not very clear, its import is loud and clear, and there is no confusion about the nature of the tax imposed. The court reserved its opinion on this matter, leaving it open for further arguments before the appropriate authority.

2. Quashing of Assessment Orders for Specific Periods:
The petitioner sought to quash the assessment orders for the 4th quarter of the Assessment Year 2015-16, all quarters of 2016-17, and the 1st quarter of 2017-18. The court found that the assessment orders were based on the number of set top boxes rather than the number of subscribers, which is contrary to Section 3AA of the Act. Consequently, the court quashed the assessment orders and the related demand notices and remitted the matter back to the Assessing Authority for fresh consideration.

3. Determination of Tax Liability for MSOs vs. LCOs:
The petitioner argued that as an MSO, it should not be liable for tax when providing entertainment through LCOs, who then provide it to subscribers. The State contended that the MSO should be considered the proprietor for tax purposes in either case. The court did not express an opinion on this issue but left it open for the parties to argue before the Assessing Authority.

4. Basis of Tax Assessment (Subscribers vs. Set Top Boxes):
The court found that the assessment orders were illegal as they were based on the number of set top boxes recorded in the petitioner’s register, rather than the number of subscribers. According to Section 3AA of the Act, tax should be levied on the connection given to a subscriber, not on the set top box itself. The court emphasized that the taxing event occurs when the connection reaches the subscriber, who is defined as a person receiving the signal without further transmission.

Conclusion:
The court quashed the assessment orders for the specified periods and remitted the matter back to the Assessing Authority to reassess the tax liability based on the number of subscribers, not set top boxes. The court directed the Assessing Authority to dispose of the matter within four weeks, allowing the parties to raise all relevant issues during the reassessment process. The recovery of the tax amounting to Rs.12.82 crores will be governed by the outcome of the reassessment.