- (1.) The controversy involved in all the three writ petition is same, therefore, they are being decided by this common order. Since the facts of all the cases are similar, therefore, for the sake of convenience and brevity the facts relating to Writ Petition No. 6012 of 2011 are being taken into consideration for the purpose of disposal of these petitions. These instant writ petitions have been filed by the petitioner with the prayer to quash and set aside the order dated May 28, 2010 passed by the Commercial Taxes Officer, Circle-I, Jaipur, by which the petitioner was held liable for payment of entertainment tax under section 3(4A), 4AAA of the Rajasthan Entertainments & Advertisements Tax Act, 1957 read with rules 18BBBB and 18BBBBB of the Rajasthan Entertainments & Advertisements Tax Rules, 1957.
(2.) It is the claim of the petitioner that it is a limited company incorporated under the Companies Act, 1956 and is providing direct-to-home (DTH) broadcasting services all over India including the State of Rajasthan. It is the claim of the petitioner that it had been granted licence under section 4 of the Indian Telegraph Act, 1885 and Indian Wireless Telegraph Act, 1933 by, the Government of India, Ministry of Information and Broadcasting to establish, operate a DTH platform and to provide DTH services on the terms and conditions as specified in the licence agreement to establish. It is the further claim of the petitioner that the Government of India granted a statutory licence dated March 24, 2006 to the petitioner under section 4 of the Indian Telegraph Act, 1885 and the Indian Wireless Telegraph Act, 1933 on the terms and conditions contained in the licence agreement for a period of 10 years. The petitioner has paid Rs. 10 crores to the Ministry of Information and Broadcasting as an initial non-refundable entry-fee and furnished a bank guarantee for an amount of Rs. 40 crores valid for the duration of the licence. As per terms and conditions of the licence the petitioner is further required to pay an annual fee equivalent to 10 per cent, of its gross revenue as reflected in the audited accounts of the company for that particular financial year within one month of the end of that financial year. The petitioner is also required to pay in addition to the licence fee, royalty for spectrum use as prescribed by the Wireless Planning & Co-ordination Authority (WPC) under the Department of Telecommunications. Pursuant to the fulfillment of the eligibility conditions, assurance and payment of requisite permission fee by the petitioner, as per the guidelines for unlinking from India notified on December 2, 2005 by the Union Government, the petitioner has also been granted permission on non-exclusive basis for a period of 10 years to establish, maintain and operate unlinking hub (teleport) and the said licence stands granted for whole of India and petitioner is not required to get any permission or licence from any other authority for providing DTH broadcasting service.
(3.) The petitioner has sought to challenge the levy of entertainment tax imposed by the Commercial Taxes Officer-I in the various assessments, wherein it is held by the assessing officer that the petitioner is liable for payment of entertainment tax in view of amendment in the Rajasthan Entertainments & Advertisements Tax Act, 1957 by the Rajasthan Finance Act, 2008 (Act No. 6 of 2008) dated February 25, 2008. According to the petitioner, the respondent-State cannot levy such tax as DTH broadcasting services specifically covered under List I, Schedule VII (entry 92C) by virtue of discipline of article 246(1) of the Constitution of India and it cannot be again taxed under any taxing entry under List II of Schedule VII (entry 62) just by artificially enlarging the scope of the entry under List II. The definition of "entertainment" remains un-amended, however the charging section states that the entertainment tax is on DTH broadcasting service.;