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TMI Blog2015 (5) TMI 913X X X X Extracts X X X X X X X X Extracts X X X X ..... ield and I do not find any distinguishing features in between the facts in the instant cases viz-a-viz the facts in the case of Purvi Communication P. Ltd. (supra) - Decided in favour of Revenue. - S.B. Sales Tax (VAT) Revision Petition No.96 to 107/2012, S.B. Sales Tax (VAT) Revision Petition No.7 to 28/2011, S.B. Sales Tax (VAT) Revision Petition No.140 to 151 /2012 - - - Dated:- 8-5-2015 - Hon'ble Mr. Justice J. K. Ranka,J. For the Appellants : Mr Vivek Singhal Mr Alkesh Sharma For the Respondents : Ms Tanvi Sahai on behalf of Mr R B Mathur, Counsel JUDGMENT 1. All these instant sales tax revision petitions are directed against order of the Rajasthan Tax Board (for short, 'Tax Board') and since common controversy has been raised and the Tax Board has also consolidated the order, therefore, with the consent of counsel for the parties, the matter is heard finally and decided by this common judgment. 2. At the outset, ld. counsel for the Revenue contended that the issue in the present bunch of petitions is identical and similar to the one decided by the coordinate Bench of this Court at principal seat, Jodhpur in the case of M/s Sky Media (P) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nnels alongwith copy of the contract executed between the MSO and its franchisees (the cable operators), copy of the certificate of incorporation issued by the competent authority under the Companies Act and copy of the receipt issued by them to their franchisees (cable operators). 4. After going through the material placed by the assessee, the AO came to the conclusion that the assessee is the proprietor of the cable television network and as per Section 4AA of the Act and in the light of the notification and amendment dt.08/03/2006, the entertainment tax is levied @ ₹ 20/- per subscriber for the entertainment services being provided through cable operators by the assessee (MSO). Since the requisite information namely; names and addresses of the cable subscribers were not provided but only names of 189 cable operators were provided, therefore, adverse inference was drawn by the AO and accordingly, the AO levied tax, interest and penalty by holding that the assessee is proprietor. 5. In the case of M/s Radiant Satellite Private Ltd, the matter was carried in appeal before the Deputy Commissioner (Appeals) [for short, 'DC(A)'] who allowed the appeals of the asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of M/s Radiant Satellite Private Ltd, the Tax Board upheld the order passed by the AO and therefore, the assessee (MSO) has filed these petitions, while in the case of M/s Bhaskar Multinet (Private) Ltd., on the other hand, the Tax Board has allowed the appeal of the assessee and therefore, the Revenue has assailed the order passed by the Tax Board before this Court. It is important to note that the judgment in the case of Radiant was delivered by the Rajasthan Tax Board on 05.01.2012 after the amendment in the Entertainment Tax Act by Rajasthan Finance Act, 2011 with retrospective effect whereas the judgment in the case of Bhaskar was delivered on 29/10/2010 i.e. prior to amendment. 8. Ld. Counsel for the assessee's jointly contended that the assessee does not fall within the notification dt.08/03/2006 and cannot be said to be the proprietor and once the assessee is not a proprietor, the question of invoking provisions of Section 4AA of the Act, 1957 does not arise. It was further contended that the judgment of the Hon'ble Apex Court in the case of M/s Purvi Communication (supra) was based on the definition as contained under the West Bengal Entertainment-cum-Amusement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s actually getting entertained namely, the subscriber. Counsel for the assessee's after going through the judgment contended that the judgment rendered by this Court in the case of M/s Sky Media (P) Ltd. (supra) has not considered several issues and has been decided on its peculiar facts. 9. Per-contra, ld. counsel for the Revenue contended that the AO has come to a correct conclusion and certainly the assessee is a proprietor and squarely falls within the notification dt.08/03/2006 and Section 4AA of the Act, 1957. She further contended that in so far as the charging section is concerned, it is not under challenge as the vires has not been challenged and once vires has not been challenged, then the assessee cannot argue that Section 4AA is inapplicable in the facts of the instant case. She strongly supported that not only the judgments of the Hon'ble Apex Court rendered in the case of Purvi Communication (supra) and in the case of Indusind Media Commun. Ltd. (supra) are squarely applicable but even judgment rendered by a coordinate court at the principal seat of this Court in the case of M/s Sky Media (P) Ltd. Vs. Asstt. Commissioner, Commercial Taxes (supra) has also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... adcasting service means distribution of multi channel television programmes by using satellite system by providing television signals direct to the premises of subscribers without passing through an intermediary such as cable services. 4AA. Levy of Tax on Cable Service and Direct to Home Broadcasting service- (1) Subject to the provisions of this Act, there shall be charged, levied and paid an entertainment tax on all payments for admission 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 categori ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... BB and 18BBBBB of the Rajasthan Entertainments Advertisements Rules, 1957 (for short, 'Rules of 1957') and this Court in DB Civil Writ Petition No.6012/2011, Tata Sky Ltd. Vs. The State of Raj. anr. vide order dt. 19/08/2014 held that the State Legislature had legislative competence to levy entertainment tax on all payments for admission to an entertainment through direct-to-home (DTH) and had rejected the claim of the aforesaid assessees. It is just to observe that the constitutional validity of the amendment brought in by the State of Rajasthan by the Rajasthan Finance Act, 2011 with retrospective effect from 25/02/2008 was held proper. Though the controversy in the present petitions relates to cable services and/or MSO cable operator etc. but ultimately the issue revolves on the retrospective amendment brought in by the statute by the Finance Act, 2011 with retrospective effect from 25/02/2008 which has been upheld. 15. After analyzing the above controversy, this Court, in the case of M/s Sky Media (P) Ltd. (supra) framed the following question:- Whether the assessee M/s Sky Media (P) Ltd. Jodhpur, a Multi System Operator (MSO), falls within the definition of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er 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 the definitions, the chain of agencies or persons providing entertainment is clearly established in the amended definitions inserted in the Act of 1957. The details of such amendments brought from time to time in the Rajasthan Entertainment Advertisement Tax Act, 1957 having relevance for Cable Network Service are enumerated below for ready reference:- S. No. Provisions Year of Insertion under the Act With effect from 1 Section 3[3(AA)] 3[3 (AAA)] Definition of Cable Service Cable Television Network inserted Rajasthan Finance Act 1999 26.03.1999 Governor's Assent on 14/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he cases in the instant petitions viz a viz Sky Media (P) Ltd. (supra) 19. Admittedly, M/s Bhaskar Multinet (Private) Ltd. is also an MSO as its claim before the AO, DC(A) and so also the Tax Board has been that it is an MSO. The DC(A) so also the Tax Board in para 7 8 of the impugned order has reproduced the contention of M/s Bhaskar Multinet (Private) Ltd. where it has been categorically admitted that it is MSO. Therefore, once it is an admitted fact, then in the case of M/s Bhaskar Multinet (Private) Ltd. as well, the aforesaid judgments hold good. 20. In my view, the judgment of the Hon'ble Apex Cort in the case of Purvi Communication P. Ltd. (supra) has rightly been applied by the Tax Board in the case of M/s. Radiant Satellite Private Ltd. and by this Court in the case of M/s Sky Media (P) Ltd. (supra) and thus the judgment in the case of Purvi Communication P. Ltd. (supra), holds the field and I do not find any distinguishing features in between the facts in the instant cases viz-a-viz the facts in the case of Purvi Communication P. Ltd. (supra). 21. The Hon'ble Apex Court in the case of Indusind Media Commun. Ltd. (supra) had also an occasion to conside ..... X X X X Extracts X X X X X X X X Extracts X X X X
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