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Showing contexts for: telecasting in Hukum Singh vs State Of U.P. And Ors. on 22 August, 1997Matching Fragments
8. However, Sri Bhattacharya drew our attention to the pleadings, adumbrated in para 17 onwards. In para 20, it is averred that the people of India while delegating to the legislature, the executive and the judiciary their respective powers reserved to themselves certain inalienable rights, including the right to light, air and ether, which have been given to them by the creator. Such rights being given by the creator, says the petitioner, "are not subject matter of the Constitution or any existing law or law in force in India. Therefore, these rights cannot be taken away or abridged by making any law". In para 21 of the writ petition, it is averred that ether is a transmitter of T. V. Signals. As the right to ether is inalienable right, the same cannot be made by Parliament or the legislature. It is, therefore, pleaded that "the petitioners cannot be subjected to any such law and without any valid law the impugned entertainment tax cannot be levied on the petitioner". In para 23 of the petition, it is pleaded that the State of U.P. cannot enact any law relating to Entry 31 of List I of 7th Schedule of the Constitution and that without enacting any law "regarding wireless broadcasting and other, like forms of communication which may include telecasting also, there is no question of levying any tax on the entertainment through such telecasting. Entertainment being incident of telecasting covered by aforesaid Entry 31 of List 1 of Schedule 7 of the Constitution, tax can be imposed on such entertainment only by the law enacted by the Parliament regarding the aforesaid Entry 31 of List 1 of the 7th Schedule. Therefore, the impugned entertainment tax levied upon the aforesaid U.P. Act is ultra vires and invalid."
12. We are not at all impressed by this submission of Sri Bhattacharya, which in our view is wholly untenable and fallacious. Sri Bhattacharya urges that transmission of Cable T.V. being through telecasting, falls within the scope of Entry 31 of the Union List and that Parliament alone has a right to impose tax thereon, but it is not at all made clear as to under which Entry, tax on entertainment would be levied by Parliament.
13. It is well settled that the entries in the three lists of the 7th schedule are of two distinct categories. In the first category are entries relating to matter of general legislation. The second category consists of entries conferring power of taxation. This scheme obtains in each of the three Lists. The various entries in the three Lists are not powers of legislation, but fields or the subject matter of legislation. Article 246 of the Constitution confers power to make laws with respect to matters, enumerated in the three Lists. This position is well demonstrated by the Supreme Court in Sundararamier & Co. v. State of Andhra Pradesh, AIR 1958 SC 468 in which the Court held (at p. 293) :
14. The Supreme Court summed up in para 55 of the AIR 1958 SC 468 that under the scheme of the Entries in the Lists, taxation is regarded as a distinct matter and is separately set out.
15. Sri Bhattacharya only submits that transmission through telecasting comes within the scope of Entry 31 of the Union List, but he did not point out as to under which entry entertainment tax will be levied. Perhaps, he is under the impression that transmission through telecasting being within the scope of Entry 31, List I tax will also be imposed thereon under that Entry. This is not legally possible. Entry 31 List I simply sets out topic for legislation on which Parliament can legislate under Article 246, but that does not mean that Parliament can levy tax under that Entry. Topic of legislation and power to tax are set out separately in the three lists, appended to the 7th Schedule and, therefore, it was for Sri Bhattacharya to clearly state as to under which entry Parliament have power to levy tax on entertainment being done through telecasting which according to him falls within the scope of the topic, set out in Entry 31 List I. Even if it is assumed that in Cable T.V. Net work there is transmission through telecasting and that falls within Entry 31 List I, the petitioner cannot succeed, unless power to tax is traced out under the Entries stated in List I, Entry 31 List I of the 7th Schedule does not confer power of taxation. Even if the submission of Sri Bhattacharya that transmission through telecasting falls under Entry 31 of Union List is assumed to be correct, that will not automatically exclude the power of the State legislatue to make laws for taxation even on matters in Entry 31.
16. Sri Bhattacharya has lost sight of the fact that the tax is not imposed under the Act on telecasting, but the tax is imposed on entertainment. Telecating as argued by Sri Bhattacharya, may be a mode for providing entertainment, but tax is leviable on entertainment and not on the mode of entertainment.
17. On the other hand, a Division Bench of this Court has held in Universal Communication System, Allahabad v. State of U.P. 1995 (29) ATJ 454 : (1995 AIHC 6398) that the Act of 1979 has been enacted with reference to Entry Nos. 33, 34 and 62 of the State List to the 7th Schedule of the Constitution. Power to levy entertainment tax under the Act has also been upheld by another Division Bench of this Court in the case of Hindalco (AIR 1996 All 199) (supra), which decision has been upheld by the Supreme Court.