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TMI Blog2015 (4) TMI 424X X X X Extracts X X X X X X X X Extracts X X X X ..... t would be of great value to quote para 34 and 35 of the said judgment to explain the aforesaid proposition that MSO is nothing but a cable operator as defined in the West Bengal Act read with the provisions of the Cable TV Network Regulations, 1995. Multi System Operator, will clearly fall within the ambit and scope of the definition `Proprietor' read with the charging provision of Section 4AA of the amended law, irrespective of the fact that there is no separate definition of such MSO, cable operator or sub-cable operator in the Rajasthan Act. A closer scrutiny of the definition of `Proprietor', who falls within the tax net under the said law would reveal that even MSO like the present assessee is undoubtedly a person connected with the organization of entertainment. He may or may not be a last person providing such entertainment in the chain to the ultimate subscriber/viewer and there may be one or more agency in between like cable operator or sub-cable operator in the present case. But, it is undoubted that without the transmission of satellite signals or electronic signals by the MSO to the cable operators or sub-cable operators, the ultimate consumer or viewer cann ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ky Media (P) Ltd. vs. Asstt.Commissioner, Commercial Taxes, Circle `A', Jodhpur. The Assessing Authority in the present cases for the assessment period September 2006 passed an impugned assessment order dated 25/6/2009 imposing the entertainment tax of ₹ 7,49,900/- @ ₹ 20/- per subscriber for 37495 subscribers and interest on such entertainment tax for the delay in payment of the same at ₹ 4,86,187/- totalling to ₹ 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 ₹ 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&# ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ided the said controversy, this Court finds that the controversy is now no longer res integra but stands concluded and, therefore, the question of 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 separ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... these submissions vehemently, learned counsel for the Revenue, Mr. Vineet Mathur submitted that the controversy not only stood concluded by the Hon'ble 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 he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... missed. Similar view was taken by the Division Bench of Allahabad High Court also in Sun Direct TV Pvt. Ltd. vs. State of U.P. Ors. - 2012 (6) ALJ 212. 13. I have 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 Televi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mission to an entertainment through a direct to home broadcasting service or through a cable service with addressable system or otherwise, other than entertainment to which section 4 applies, at such 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evy tax on luxuries including taxes on entertainments, amusements, betting and gambling falling under Entry 62 of List II of Seventh Schedule to the Constitution. The power of regulation or control under the said 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 provis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h they call them as cable operator). The viewers enjoy, or are entertained by such performance, film, or programme because of receiving and transmitting video or audiovisual signals through coaxial cable or any 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 prese ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... through DTH services will also squarely fall within the meaning of `entertainment' and therefore the tax in question is within the legislative competence of the State. The amendments in the Act as explained in the Objects 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 ho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... present case. But, it is undoubted that without the transmission of satellite signals or electronic signals by the MSO to the cable operators or sub-cable operators, the ultimate consumer or viewer cannot view the entertainment. Thus, 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 q ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Deletion of Section 4AAA Levy of Tax on Direct to Home Broadcasting Services Rajasthan Finance Act 2014 31.07.20 20. The judgment cited by the learned counsel for the petitioner- assessee in the case of Tata Sky Limited vs. State of Madhya Pradesh Ors. - (2013) 4 SCC 656 is clearly not applicable in the present case as the Supreme Court in that case dealt with the DTH service provided under the particular license under the brand name of Tata Sky and for the period which was not covered by the new enactment of 2011. The Apex Court even clarified that non-exigibility of the DTH service to entertainment tax w.e.f. 5.5.2008 to 1.4.2011 is only for the period before the enactment of new law in 2011 but here in the present case undoubtedly the amended provisions of the Rajasthan Entertainment Advertisement Tax Act, 1957 adequately and fully cover the present assessee to fall within the ambit of definition clause as well as the charging provision of the said law. 21. Thus, this Court is of the considered opinion that the controvery in hand is squarely covered on all fours by the aforesaid judgments of Hon'ble Supreme Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X
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