Document Fragment View

Matching Fragments

11. The relevant provisions of the Constitution of India are as under:-
"246. Subject-matter of laws made by Parliament and by the legislatures of states.-
(1) Notwithstanding anything in clauses (2) and (3), Parliament has exclusive power to make laws with respect to any of the matters enumerated in list I in the seventh schedule (in this Constitution referred to as the "Union List").
WP (C) 2194/2010, 1312/2010, 2718/2010 & 4621/2010 Page No.11 of 45 (2) Notwithstanding anything in clause (3), Parliament, and, subject to clause (1) the legislature of any State also, have power to make laws with respect to any of the matters eliminated in list III in the seventh schedule (in this Constitution referred to as the "Concurrent List").
(3) Subject to clauses (1) and (2), the legislature of any State has exclusive power to make laws for such State or any part thereof with respect to any of the matters enumerated in list in the seventh schedule (in this Constitution referred to as the "State list").
(4) Parliament has power to make laws in respect to any matter for any part of the territory of India not included in our state notwithstanding that such matter is a matter enumerated in the State list.

WP (C) 2194/2010, 1312/2010, 2718/2010 & 4621/2010 Page No.18 of 45

15. Next, is another constitution bench decision of the Supreme Court in the case of Godfrey Phillips (supra). The imposition and levy of a luxury tax on tobacco and tobacco products by treating them as "luxuries" within the meaning of the word in Entry 62 of List II was the subject matter of challenge. While construing provisions of the Constitution of India and the relevant entries in the Seventh Schedule, the Supreme Court sounded a warning that opinions expressed by courts of countries like United States of America, Canada or Australia may not be of any help. In this context, the Supreme Court observed as follows:-

WP (C) 2194/2010, 1312/2010, 2718/2010 & 4621/2010 Page No.38 of 45

28. Insofar as this case is concerned, the charging section is section 7 of the said Act. Sub-section (1) of the said section 7, inter alia, stipulates that there shall be levied and paid an entertainment tax on all payments for admission to an entertainment through a direct-to-home (DTH) at such rates not exceeding rupees six hundred for every subscriber for every year as the Government may, from time to time, notify in this behalf, which shall be collected by the proprietor and paid to the Government in the manner prescribed. A plain reading of the provision makes it clear that the tax or levy is on "entertainment" through a DTH service. Now, "entertainment" as defined in section 2(i) of the said Act includes "entertainment through cable service and direct- to-home (DTH) service". The emphasis is on "entertainment" and not on the vehicle for such entertainment. We have already seen in the case of Purvi Communications (supra) that the Supreme Court held the performances, films or programmes shown to the viewers through the cable television network (cable service) as falling within the meaning of "entertainments" and therefore within the legislative competence of the State Legislature under Entry 62 of List II of the Seventh Schedule to the Constitution to make law for the levy and collection of tax on such entertainments. Clearly, then, the same performances, films or programmes shown to the viewers through the DTH service would also fall within the meaning of "entertainments" and therefore the tax in question would be within the legislative competence of the State Legislature under Entry 62 of List II of the Seventh Schedule to the Constitution.