{"id":321,"date":"2023-06-05T11:41:02","date_gmt":"2023-06-05T11:41:02","guid":{"rendered":"https:\/\/theleagle.in\/?p=321"},"modified":"2023-08-01T07:28:56","modified_gmt":"2023-08-01T07:28:56","slug":"patna-high-court-prevents-levy-of-entertainment-tax-citing-101st-constitutional-amendment","status":"publish","type":"post","link":"https:\/\/theleagle.in\/?p=321","title":{"rendered":"Patna High Court Prevents Levy of Entertainment Tax Citing 101st\u00a0Constitutional Amendment"},"content":{"rendered":"
<\/div>\n

A Division Bench of the Patna High Court on 18 May 2023 pronounced a judgment<\/a> that inter alia required it to examine the interaction of Bihar Entertainment Tax Act, 1948 (Act of 1948) with the 101st<\/sup> Constitutional Amendment Act, 2016 (\u2018101st<\/sup> Amendment\u2019). While the case involved both, statutory and constitutional issues relating to the scope and nature of entertainment tax, in this post I will focus on the Constitutional aspect of the case. More specifically, nature and scope of power of States to levy entertainment tax after the 101st<\/sup>Amendment.  <\/p>\n\n\n\n

Introduction <\/strong><\/p>\n\n\n\n

The petitioner was a Multi System Operator (\u2018MCO\u2019) who challenged its tax liability under the Act of 1948. State of Bihar argued that the MCO was liable to pay entertainment tax for transmitting programs it received through satellite. The MCO argued that the tax liability was that of local cable operators who broadcasted those signals to the subscribers and were responsible were providing connection to the subscribers, latter being the taxable event under the Act of 1948. One of the petitioner\u2019s grounds of challenge was the State of Bihar\u2019s lack of competence to levy entertainment tax after the 101st<\/sup> Amendment. There were two prongs to the petitioner\u2019s argument: first, Entry 62 in List II has been amended by the 101st<\/sup> Amendment denuding State the power to levy entertainment tax. Pre and post amendment versions of Entry 62 in List II are respectively as follows: <\/p>\n\n\n\n

Taxes on luxuries, including taxes on entertainments, amusements, betting and gambling<\/em>. <\/p>\n\n\n\n

Taxes on entertainments and amusements to the extent levied and collected by a Panchayat or a Municipality or a Regional Council or a District Council<\/em>. <\/p>\n\n\n\n

As per the petitioner the field of legislation, i.e., entertainment tax, was no longer available to a State in the form it was available before the 101st<\/sup> Amendment. Entry 62 in List II has been substituted<\/em> and only permits levy and collection by local bodies. Consequently, after the 101st<\/sup> Amendment, State of Bihar cannot levy and collect entertainment tax through Commercial Tax Officers as provided in the Act of 1948 and the relevant Rules. <\/p>\n\n\n\n

The second prong of the petitioner\u2019s argument rested on Section 19 of the 101st<\/sup> Amendment which states as follows:<\/p>\n\n\n\n

Notwithstanding anything in this Act, any provision of any law relating to tax on goods or services or on both<\/u> in force in any State immediately before the commencement of this Act, which is inconsistent with the provisions of the Constitution as amended by this Act shall continue to be in force until amended or repealed by a competent Legislature or other competent authority or until expiration of one year from such commencement, whichever is earlier. <\/em>(emphasis added) <\/p>\n\n\n\n

The petitioner urged that the Act of 1948 cannot justify levy of entertainment tax after the 101st<\/sup> Amendment and one can agree that is a reasonable conclusion since Section 19 only saves \u2018law relating to tax on goods or services or on both\u2019. But the petitioner went a step ahead and argued that there is no justification for levy and collection of entertainment tax for the period prior<\/em> to the 101st<\/sup> Amendment since the power for levy and collection stands extinguished by the substitution<\/em> of Entry 62 in List II. Now courts have recognized that the effect of substitution is that it repeals and introduces a new law, but the doctrine of \u2018substitution effect\u2019 has not yet been fully tested and applied regarding legislative entries in the Constitution. Neither is there complete jurisprudential clarity if the effect of substitution is retrospective in nature. (paras 7-9) In my opinion, the petitioner in making the latter argument was making a novel claim in the constitutional context.  <\/p>\n\n\n\n

The State of Bihar, on the other hand, tried to justify its power to levy and collect entertainment tax despite the 101st<\/sup> Amendment amending Entry 62. To begin with, it stated that the 101st<\/sup> Amendment introduced a new clause, i.e., Article 366(26A) which defined \u2018services\u2019 as anything other than goods. The State adopted an unusually wide and non-contextual interpretation of \u2018services\u2019 to argue that every tax other than on goods would be covered by Section 19 of the 101st<\/sup> Amendment including entertainment tax. The State further referred to Sections 173 and 174 of the Bihar Goods and Services Tax Act, 2017 and claimed that while these provisions repealed the Act of 1948, recovery of arrears of tax was allowed as if the Act of 1948 was not repealed. The State made an alternative plea that the levy and collection of entertainment tax before the 101st<\/sup>Amendment certainly cannot be challenged. The State argued that the repeal and saving clause of Bihar Goods and Services Tax Act, 2017 not only preserved pre-existing tax liability, but also saved the levy and collection of tax prior to the 101st<\/sup> Amendment.       <\/p>\n\n\n\n

101st<\/sup> Constitution Amendment Narrows State\u2019s Power to Levy Entertainment Tax  <\/strong><\/p>\n\n\n\n

Patna High Court agreed with the petitioner\u2019s arguments and made some interesting though not fully reasoned observations.  <\/p>\n\n\n\n

To begin with, the High Court did not agree with the State\u2019s argument that the definition of services encompassed entertainment tax. The High Court rightly reasoned that if the term \u2018services\u2019 was intended to subsume every tax there was no reason to retain Entry 62 and it could have been deleted like some other entries such as Entry 52 relating to entry taxes which was deleted via the 101st<\/sup> Amendment. Entertainment tax survived the 101st<\/sup> Amendment albeit in a modified form presumably with an intent to keep it as a separate levy instead of subsuming it under GST. In stating so, the High Court offered a more credible interpretation as compared to the State\u2019s expansive understanding of the term \u2018services\u2019 under Article 366. (paras 32 and 33)<\/p>\n\n\n\n

As regards the impact and effect of Section 19, the High Court stated that inconsistent provisions in State legislations could be continued for one year or till their repeal\/amendment by respective State legislatures, whichever was earlier. However, the Act of 1948 while validly legislated under Entry 62, as it existed then, could not be sustained after the 101st<\/sup> Amendment because of the changes made to Entry 62. This conclusion also is a right understanding and naturally flows from the High Court\u2019s understanding of the scope of Section 19, i.e., it did not extend to entertainment tax.    <\/p>\n\n\n\n

However, as regards the petitioner\u2019s argument that entertainment tax cannot be collected even for the period before<\/em> the 101st<\/sup> Amendment, the High Court concluded that: <\/p>\n\n\n\n

The tax for the period prior to the amendment, though levied on the taxable event occurring, cannot also be collected since there is no transition provision available under the 101st Amendment<\/u> making such collection of entertainment tax permissible for one year or by way of a repeal; by an enactment, consistent with the amendment, with a saving clause for continuance of the levy and collection under the old Act as it was never repealed<\/em>. (para 40) (emphasis added)  <\/p>\n\n\n\n

The above observation does not fully add up. Why would a transition provision be necessary to collect tax for a taxable event that occurred before the 101st<\/sup> Amendment? If at the time of occurrence of the taxable event, State of Bihar had the authority to levy and collect entertainment tax, it should be allowed to recover the same even after the 101st<\/sup> Amendment. Why should the power to recover pre-amendment tax liabilities cease abruptly if the transition provision does not encompass entertainment tax? Transition provisions, such as Section 19, aim to smoothen transition and allow States time to impose taxes under pre-existing laws such as VAT and\/or amend the stated laws in consonance with the new regime, in this case GST. The High Court was right in observing that Section 19 excluded entertainment tax and thereby did not allow States to levy and collect entertainment tax for taxable event under the Act of 1948 occurring after the 1.07.2017, the date of 101st<\/sup> Amendment. However, there is little to justify that Section 19 also implies that taxable events occurred and tax liabilities incurred by taxpayers before that date should not be satisfied by taxpayers.<\/p>\n\n\n\n

The High Court to fortify its reasoning needed to engage more deeply with the argument that Entry 62 in List II has been substituted and its resultant effect. A prima facie conclusion is that Entry 62 has been amended\/modified, retaining power regarding entertainment tax with the State subject to it being levied and collected at the local level. However, given the transformative changes introduced in indirect tax regime \u2013 labelled under the umbrella heading of GST regime – by the 101st<\/sup> Amendment it would not be out of context to suggest that Entry 62 is substituted. There are arguments that can be made from both sides, but the judgment provides little insight about the scope of arguments and neither does it engage with this crucial issue in a meaningful manner. In my view, States are allowed to recover arrears of tax relating to the period before the 101st<\/sup> Amendment and a typical savings clause such as in Sections 173 and 174 of the Bihar Goods and Services Act, 2017 is usually beyond reproach. The onus is on the petitioners to prove that the tax arrears cannot be collected. In this case, the High Court thought that the petitioners have discharged the burden, but its reasoning didn\u2019t seem sufficiently persuasive.     <\/p>\n","protected":false},"excerpt":{"rendered":"

A Division Bench of the Patna High Court on 18 May 2023 pronounced a judgment that inter alia required it to examine the interaction of Bihar Entertainment Tax Act, 1948 (Act of 1948) with the 101st Constitutional Amendment Act, 2016 (\u2018101st Amendment\u2019). While the case involved both, statutory and constitutional issues relating to the scope and nature of entertainment … Read more<\/a><\/p>\n","protected":false},"author":2,"featured_media":326,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_themeisle_gutenberg_block_has_review":false,"cybocfi_hide_featured_image":"","footnotes":""},"categories":[10,11],"tags":[71,69,70,94,72],"class_list":["post-321","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-constitution_and_tax","category-indirect_tax","tag-101st-constitutional-amendment","tag-entertainment-tax","tag-patna-high-court","tag-ravpratapsingh","tag-savings-clause"],"yoast_head":"\nPatna High Court Prevents Levy of Entertainment Tax Citing 101st\u00a0Constitutional Amendment - TheLeagle | Eco Law Forum<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/theleagle.in\/?p=321\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Patna High Court Prevents Levy of Entertainment Tax Citing 101st\u00a0Constitutional Amendment - TheLeagle | Eco Law Forum\" \/>\n<meta property=\"og:description\" content=\"A Division Bench of the Patna High Court on 18 May 2023 pronounced a judgment that inter alia required it to examine the interaction of Bihar Entertainment Tax Act, 1948 (Act of 1948) with the 101st Constitutional Amendment Act, 2016 (\u2018101st Amendment\u2019). 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