HIGH COURT OF UTTARAKHAND AT NAINITAL (1) Special Appeal No. 21 of 2009 State of Uttarakhand and five others. ……….Appellants. Versus Tata Sky. Ltd. …….Respondent. AND (2) Special Appeal No. 25 of 2009 State of Uttarakhand and five others. ……….Appellants. Versus M/s Dish TV India Ltd. and another. …….Respondents. AND (3) Special Appeal No. 26 of 2009 State of Uttarakhand and two others. ……….Appellants. Versus Tata Sky Ltd. and another. …….Respondents. Mr. L.P. Naithani, Sr. Advocate, Advocate General assisted by Mr. P.C. Bisht, for State/appellants. Mr. K.N. Tripathi, Sr. Advocate assisted by D.K. Singh, Adv., Mr. Pankaj Bhagat, Adv. Mr. D.S. Patni, Adv., Mr. Vipul Sharma, Adv. and Mr. Yanendra Pandey, for the respondents. AND (4) Special Appeal No. 23 of 2009 M/s Dish T.V. India Ltd. and another. ……….Appellants. Versus State of Uttarakhand & five others. …….Respondents. AND (5) Special Appeal No. 30 of 2009 Tata Sky Ltd. ……….Appellant. Versus State of Uttarakhand and two others. …….Respondents. AND (6) Special Appeal No. 31 of 2009 Tata Sky Ltd. ……….Appellant. Versus State of Uttarakhand and two others. …….Respondents. Mr. K.N. Tripathi, Sr. Advocate assisted by D.K. Singh, Adv., Mr. Pankaj Bhagat, Adv. Mr. D.S. Patni, Adv.,Mr. Vipul Sharma and Mr. Yanendra Pandey, for the appellants. Mr. L.P. Naithani, Sr. Advocate, Advocate General assisted by Mr. P.C. Bisht, for State/respondents. Coram: Hon’ble V.K.Gupta, C.J. 2 Hon’ble V.K. Bist, J. V.K. Gupta,C.J. (Oral) These two sets of Special Appeals, one filed by the State of Uttarakhand and its officers (being Special Appeal Nos. 21, 25 and 26 of 2009) and the other set filed by the Service Providers (being Special Appeal Nos. 23, 30 and 31 of 2009), are against the judgment dated 26.11.2008 passed by learned Single Judge of this Court in a batch of writ petitions relating to some issues concerning the levy and imposition of entertainment tax qua the writ petitioners Service Providers under the U.P. Entertainments and Betting Tax Act, 1979 (1979 Act for short). 2. The writ petitioners are Direct to Home (DTH) service providers. Their case before the learned Single Judge was that the nature of service being offered by them was different to the service offered by cable operators because the DTH service providers provide service by using satellite system, transmitting programmes and providing TV signals directly to the subscribers’ premises. The subscribers in the case of DTH system can have access to the multiple channels in their homes in KU Band by using a small antenna and a set top box (STB). Their further case before the learned Single Judge was that DTH service is under the control and regulation of the Central Government and service tax is payable on it. 3. Two issues arose for consideration before the learned Single Judge, because the writ petitioners had raised two grounds of challenge. First issue related to the levy and imposition of entertainment tax qua the writ petitioners in the light of the provisions contained in 1979 Act. The second issue related to and arose out of the second ground of challenge, viz. that since the writ petitioners were paying service tax leviable through a Legislation enacted under Entry No. 92 (c) of the Union List of the Seventh Schedule of the Constitution of India, 3 the State Legislature had no power to legislate by providing for levy and imposition of entertainment tax in terms of Entry no.62 of the State List in the Seventh Schedule of the Constitution of India. 4. By going through all the relevant provisions of 1979 Act, learned Single Judge found himself of the view that no provision of 1979 Act provided for imposition or levy of entertainment tax qua DTH service providers. We tend to fully agree with this view of the learned Single Judge because we ourselves are of the view, after going through all the provisions of 1979 Act as it stood at the time the impugned judgment was delivered, that this Act did not contain any provision which authorized or permitted the imposition or levy of entertainment tax qua DTH service providers. Whether, we are fortified in this view of ours or not, but a subsequent development is important and relevant to be taken note of. The Uttarakhand State Legislature has, after the pronouncement of the aforesaid judgment, by notification no. 131/XXXVI (3)/2009/11(1)/2009 dated 16.03.2009 enacted the Uttarakhand (The Uttar Pradesh Entertainments and Betting Tax Act, 1979) (Amendment), Act 2009 (Act No. 4 of 2009). By virtue of this 2009 Amendment Act, a new clause (ff) has been inserted in section 2 of the Principal Act by which DTH broadcasting service has been defined. Clause (g) of section 2 of 1979 Act, as it originally stood, has also been substituted by a new clause (g) in the aforesaid Amendment Act expanding the definition of the word “Entertainment” so as to include DTH broadcasting service in the expanded definition. 5. In our considered opinion, therefore, learned Single Judge was absolutely correct in his view that the law as it stood at the relevant time did not authorize the imposition or levy of service or entertainment tax qua the writ petitioners. 4 6. In so far as the second issue is concerned, we are firmly of the opinion that even though the Constitutional Scheme is clear that the levy and imposition of the entertainment tax as covered by Entry (62) of the State List is clearly distinct than the levy and imposition of service tax as originating from Entry 92 (c) of the Union List, both the legislations operate in different, distinct and independent fields and therefore, both the legislatures, the State legislature as well as the Union Parliament were competent to legislate in their respective fields. In the present case, there was no occasion for the learned Single Judge to have gone into that aspect because of the fact that he had himself concluded that the law as it stood at the relevant time did not authorize imposition or levy of entertainment tax qua DTH service providers. Be that as it may, in our considered opinion the issue raised in the Special Appeals filed by the writ petitioners challenging the aforesaid part of the judgment of the learned Single Judge is only of an academic importance and nature because, the said issue actually should not have arisen for consideration in the light of the finding on the first issue. The Special Appeals filed by the writ petitioners accordingly are held non-maintainable. 7. Both sets of appeals are dismissed in limine. 8. At this stage Mr. K.N. Tripathi, learned Sr. Advocate, appearing for the appellants in the second set of appeals submits that a new cause of action has accrued to the writ petitioners by the coming into force of 2009 Amendment Act, amending some provisions of 1979 Act. We tend to agree with him. Mr. Tripathi submits that the writ petitioners intend to challenge the aforesaid 2009 Amendment Act in this Court and seeks liberty from us for doing so. 5 9. We do wish to observe that it shall be open to the Writ Petitioners to challenge the aforesaid Amendment Act, if so advised and the judgment of the learned Single Judge impugned in these appeals as well as the judgment passed by us today shall not come in their way in doing so. However, we also do wish to observe that any challenge to the aforesaid Amendment Act shall be dealt with and decided on its own merits and in accordance with law. (V.K. Bist, J.) (V.K. Gupta, C.J.) 23.03.2009 NCM/SKS: