Allahabad High Court
Anil Kumar vs State Of U.P. And 5 Others on 2 September, 2024
Author: Piyush Agrawal
Bench: Piyush Agrawal
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2024:AHC:141386 Court No. - 2 Case :- WRIT TAX No. - 792 of 2019 Petitioner :- Anil Kumar Respondent :- State Of U.P. And 5 Others Counsel for Petitioner :- Harish Kumar Yadav Counsel for Respondent :- C.S.C. With Case :- WRIT TAX No. - 795 of 2019 Petitioner :- Akil Ahmad Respondent :- State Of U.P. And 5 Others Counsel for Petitioner :- Harish Kumar Yadav Counsel for Respondent :- C.S.C. Hon'ble Piyush Agrawal,J.
1. Heard Mr. Harish Kumar Yadav for the petitioner and Mr. B.K. Pandey, learned Additional Chief Standing Counsel for State-respondents.
2. Similar controversy is involved in both the writ petitions, therefore, with the consent of the parties, both the writ petitions are decided by a common judgement treating Writ Tax No. 792 of 2019 as leading case.
3. By means of Writ Tax No. 792 of 2019, the petitioner is praying, inter alia, for the following reliefs:
"(i) issue a writ, order or direction in the nature of certiorari quashing the impugned order dated 16.8.2018 of respondent nos. 3 and 4 passed in Letter No. 324/M.K./2018-19 and impugned order dated 08.4.2019 of respondent no. 2 passed in Appeal / Case No. 01740 of 2018 Computerized Case No. C-201813000001740 (Anil Kumar Vs. State of U.P. and others) and impugned Realization Certificate dated 07.06.2019 of respondent no. 5 so that justice may be done (Annexure Nos. 6,9 and 10) to this writ petition.
(ii) issue a writ, order or direction in the nature of mandamus commanding the Respondent Authorities to refund the amount with interest which so ever were deposited from time to time by the petitioner."
4. Learned counsel for the petitioner submits that petitioner is a local cable TV operator, who is providing Television Services to the subscribers under the instructions and agreement with Multi System Operator (M.S.O.)/respondent no. 6. He submits that after receiving the set top boxes from the Multi System Operator (herein after referred to as 'MSO'), the same is given to the subscribers and for this function between the petitioner and MSO, an agreement was executed, therefore, under Section 3 of UP Entertainment and Betting Tax Act, 1979, the petitioner was not liable to pay any tax as in view of Government Order dated 31.3.2015, the liability for payment of tax is on MSO, hence the impugned order has been passed illegally against the petitioner.
5. In support of his submission, learned counsel for the petitioner has relied upon the judgement of this Court in Writ Tax No. 378 of 2016 (M/s Den Prayag Cable Network Pvt. Ltd. Vs. State of UP and others) decided on 27.3.2017 and refers its paragraph nos. 13, 16,17 and 22 of the same. He prays for allowing the writ petition.
6. Per contra, Mr. B.K. Pandey, learned ACSC supports the impugned order and submits that the petitioner has failed to provide any detail at any stage i.e. before assessing authority, appellate authority or before this Court. He submits that petitioner was required to furnish details of total set top box received from MSO and installed, number of set top boxes from which subscription was directly realized by the petitioner as the associate, agent, franchise of MSO or directly realized the subscription, but the petitioner has failed to do so. Once the petitioner has failed to provide any details, the impugned order has rightly been passed. He submits that the judgement in the case of Den Prayag Cable Network Pvt. Ltd. (supra) is of no aid to the petitioner as the petitioner at no stage have furnished the details as referred above. He prays for dismissing the present writ petition.
7. After hearing learned counsel for the parties, the Court has perused the records.
8. Learned counsel for the petitioner is not disputing that he is providing the set top box to the various subscribers. The petitioner at any stage, even up to the stage of this Court, has not furnished any details with regard to installation of set top box, description of subscribers, realization of subscription fee etc. He also failed to give the details of the amount realized on behalf of 'MSO'. Once the details have not been furnished, the impugned order cannot be said to be illegal.
9. The record further reveals that petitioner himself had applied for registration and at the time of registration, some details have furnished to which registration has been granted, therefore, liability of tax under Section 11 of the Act is upon the petitioner. This fact has not been disputed by the petitioner at any stage. The record further reveals that findings of fact, recorded by the respondent authorities, have not been challenged by the petitioner, to the extent as mentioned herein above.
10. It is not the case of the petitioner that authorities, who has passed the impugned order, has lack of jurisdiction. Further, the petitioner has not stated that they do not have any cable service control room, therefore, the Government Order dated 31.3.2015 is also of no aid to him. Further the judgement relied upon by the petitioner in M/s Den Prayag Cable Network (supra) is also of no aid to it, in the absence of non-furnishing of the details as mentioned above.
11. In view of above, no interference is called for by this Court.
12. Both the writ petitions lack merit and are accordingly dismissed.
Order Date :- 2.9.2024 Rahul Dwivedi/-