NEW DELHI: In a major relief to direct-to-home operators in the state, the Supreme Court last week held that the Madhya Pradesh government cannot demand entertainment tax on DTH services under the Madhya Pradesh Entertainment Duty and Advertisements Tax Act, 1936.

Justice Aftab Alam and Justice R M Lodha said in a judgment that Act ‘cannot be extended to cover DTH operations.’

Accepting appeals by Tata Sky against a judgment of the Madhya Pradesh High Court of August 2010, the apex court said: ‘Neither the provision of section 4(1) nor any of the modes provided under section 4(2) of the Act can be made applicable for collection of duty on DTH operations. Further, it is noted above that section 8 provides rule making powers. In exercise of the powers under that provision, the Madhya Pradesh Entertainment Duty and Advertisement Tax Rules 1942 were framed. A perusal of the Rules makes it absolutely clear that the collection mechanism under the 1936 Act is based on revenue stamps stuck to the tickets issued by the proprietor for entry to the specified place where entertainment is held.’

The Court added: ‘Under section 3 read with section 2(d) and section 2(a), the charge or levy of tax is attracted only if an entertainment takes place in a specified place or locations and persons are admitted to the place on payment of a charge to the proprietor providing the entertainment. In the present case, as DTH operation is not a place-related entertainment, it is not covered by the charging section 3 read with section 2(a) and 2(b) of the 1936 Act. Consequently, the question of going to section 2(d)(iv) does not arise.’

The revenue department had demanded 20 per cent entertainment duty on subscription payment from the DTH operator, which had commenced services in August 2006 all over the country including Madhya Pradesh.

Tata Sky in their appeals had contended that DTH broadcast is a notified service under the Finance Act and it is chargeable to service tax. For the purpose of levy of service tax, “broadcasting” has been defined specifically under section 65(15) of the Finance Act. The broadcasting services were brought within the purview of the service tax under section 65(105)(zk) of the Finance Act 1994 as amended with effect from 16 July 2001. Later on, DTH service was brought within the purview of the service tax with effect from 16 June 2006.

Tata Sky contended that it does not use any infrastructure from the State for its DTH broadcasts.

On 5 May 2008, the State Government issued a gazette notification fixing 20 per cent entertainment duty in respect of every payment made for admission to an entertainment other than cinemas, videos cassette recorders and cable service.

The State on 1 August 2009 passed the Madhya Pradesh Entertainment Duty and Advertisements Tax (Amendment) Act, 2009. By the Amendment Act, the failure to produce accounts and documents as required by the Excise Commissioner or any officer authorized by the State Government was made a penal offence.

However, the apex court noted that this amendment ‘did not introduce any provision in the Parent Act with respect to levy of entertainment duty on DTH broadcasting.’

Referring to the notification of 5 May 2008, the apex court said ‘it is elementary that a notification issued in exercise of powers under the Act cannot amend the Act. Moreover, the notification merely prescribes the rate of entertainment duty at 20 per cent in respect of every payment for admission to an entertainment other than cinema, video cassette recorder and cable service. The notification cannot enlarge either the charging section or amend the provision of collection under section 4 of the Act read with the 1942 Rules. It is therefore clear that the notification in no way improves the case of the State.’

The Court also said that the controversy in all the three appeals relates to the demand and realization of entertainment tax under the 1936 Act, which means for the period between the commencement of operation by the appellant in the year 2006 and 31 March 2011, the day prior to the coming into force of the new Act, called the Madhya Pradesh Vilasita, Manoranjan, Amod Evam Vigyapan Kar Adiniyam 2011.