LexM/S TATA SKY LTD. versus STATE OF M.P. AND OTHERS
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[2013) 2 S.C.R. 849 M/S TATA SKY LTD. v. STATE OF M.P. AND OTHERS (Civil Appeal No. 3882 of 2013 etc.) APRIL 16, 2013 [AFTAB ALAM AND R.M. LODHA, JJ.] MADHYA PRADESH ENTERTAINMENT DUTY AND ADVERTISEMENTS TAX ACT, 1936: ss.2(a};2(b),2(d)(iv), 3 and 4 - Levy of entertainment duty A B c on Direct to Home (DTH) entertainment service for the period 5-5-2008 to 1-4-2011 - Held: DTH is not covered by provisions of s.3 read with ss.2(a),. 2(b) and 2(d) - Further, neither the provision of s.4(1) nor any of modes provided ul D s.4(2) can be made applicable for collection of duty on DTH - Therefore, 1936 Act cannot be extended to cover DTH operations being carried out by appellants -Indian Telegraph Act, 1885 - s. 4 - Indian· Telegraphy Act, 1933 - Madhya~ Pradesh Entertainment Duty and Advertisements Tax Rules E 1942. Administrative Law Delegated legislation :- Notification - Held: Notification issued in exercise of powers under the Act cannot amend the F Act - In the context of instant case, since no duty could be levied on DTH operation under 1936 Act prior to issuance of notification dated 5-5-2008, duty can not be levied under the said Act after issuance of notification - Madhya Pradesh Entertainment Duty and Advertisements Tax Act, 1936. G I On May 5, 2008, the State Government of Madhya Pradesh, In exercise of powers conferred u/s.3(1) of the Madhya Pradesh Entertainment Duty and Advertisements 849 H 850 SUPREME COURT REPORTS [2013] 2 S.C.R. A Tax Act, 1936, issued a gazette notification fixing 20% entertainment duty in respect of every payment made for admission to an entertainment other than cinemas, videos cassette recorders and cable service. Consequently, a demand notice dated June 10, 2009 was B issued by the Excise Commissioner to the appellant raising a demand of Entertainment Duty on Direct to Home Entertainment Service. Subsequently, a number of notices were issued. The appellant filed a writ petition, challenging the demand and collection of entertainment c duty u/ s.3(1) of the 1936 Act. It was the case of the appellant that on 24-3-2006, it got a licence .from .the Government of India u/s 4 of the Indian Telegraph Act, 1885 and Indian Telegraphy Act, 1933 to establish, maintain and operate DTH platform for a period of 10 0 years on the terms and conditions stipulated in the , licence agreement. The writ petition was dismissed by the High Court. In the instant appeals, the questions for consideration before the Court were "whether the E provisions of the 1936 Act have the necessary expanse and flexibility to include DTH as an "entertainment" chargeable to tax", and "whether the notification dated May 5, 2008 in any manner extended the scope of chargeability under the 1936 Act." F Allowing the appeals, the Court HELD: 1.1. On a careful examination of the Madhya Pradesh Entertainment Duty And Advertisements Tax Act, 1936 as a whole, and more particularly, on a conjoint G reading of clauses (a) ["Admission to an entertainment"], (b) ["Entertainment"] and (d) ["Payment of admission"] of s.2 along with s.3 creating the charge and s.4 providing the collection machinery, it becomes clear that the provisions of 1936 Act are applicable only to place- H TATA SKY LTD. v. STATE OF M.P. 851 related entertainment and cover an entertainment which A takes place in a specified physical location to which persons are admitted on payment of some charge as defined under clause (d) of s. 2. The legislative history and the amendments introduced in the 1936 Act also show that it was how the scheme of the 1936 Act was 8 viewed by the State itself. The provisions of the 1936 Act were inadequate to bring shows by video cassette recorder or video cassette and player cable T.V. operations within the taxing net and, therefore, ss. 3-A and s. 3-B were inserted respectively with effect from May C 1, 1999 and April 1, 2001. In this regard, it is also very important to note that both in the case of shows by video cassette recorder or video cassette and player, cable T.V. operations, the collection machinery is in-built and , provided within the respective provisions of s.3-A and s. 3-B .. and in those two cases the collection of duty does D not take place u/s. 4 of the 1936 Act. [para 35] [866-F-H; 867-A-C] 1.2. The reliance placed on behalf of the State on Sub-clause(iv) of clause (d) of s.2 is untenable for more E-" reasons than one: Firs
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