The imposition of tax requires a specific statutory provision, and an executive order or circular cannot justify such imposition.

R.N.Sahay, J.

1. All the petitioners are partners and/or proprietors of firms engaged in the trade of cable T.V. operation. Their field of activity is in the district of Dhanbad. The petitioners have installed Dish Antennas and are receiving programmes which are beemed through Satellite and through cables and other electronic gadgets. Then they distribute the programmes to the consumers through T.V. Sets. The petitioners are receiving programmes through Satellite systems viz., Insat 2-A. Asiaset and Arabset. From the above mentioned Satellites petitioners are receiving programmes from 14 channels. The petitioners can rely only 4/5 channels at a time through Receivers and/or distributors.

2. The petitioners charge installation cost from the consumer for laying cables from the place where the Dish Antena is set up to the place where the Television sets of the consumers are set up. Initial cost varies depending upon the distance of the T.V. set from the location of the Dish Antennas of the petitioners. These charges include T.V. tuning, checking of wires, replacement of wires, amplifier system, Tap off and other electronic items. The petitioners have to employ various people as servicemen to manage the correct functioning of the entire system and for removing any defect in the Cable network or other electronic items and in lieu of these services provided by the petitioners, the petitioners levy a nominal service charge from the consumers.

3. According to the petitioners till date no law for regulation of the operations of Dish Antennas has been passed or made by the Central Government and/or the State Government.

4. It appears that the Commissioner of Commercial Tax Patna issued a Circular dated 4.12.1992 to all Subordinate Commercial Tax Officers to the effect that having regard to the provisions contained in the Bihar Entertainment Tax Act 1948, Dish Antennas/Cable T.V. Operators who provide entertainment are liable to pay Entertainment Tax @ 110%-under Sec. 3 of the Act. A direction was issued for realisation of the tax from the cable operators. The aforesaid circular was issued after obtaining the opinion of the Advocate General of Bihar. The Circular is annexed as Annexure-1 to the writ application.

5. Pursuant to the above circular the petitioners have been issued show cause notices (Annexure-2) wherein it has been stated that petitioners are distributing entertainment programmes through Dish Antennas and they have not registered themselves under the Provisions of the Bihar Entertainment Act 1948, and as such they have also not paid entertainment tax, and hence why a proceeding be not initiated under Sec. 6(4) of the Act.

6. By this application, the petitioners have impugned the vires of Annexure-1 and 2.

7. The petitioners maintain that under the existing provisions in the Act no tax can be levied without amending the act suitably to bring the cable operators within the purview of the Act. It is contended that the impugned circular was issued on the opinion of the Advocate General without considering the question as to whether the Act could be made applicable to the cable operators.

8. The most question for consideration is as to whether Bihar Entertainment Tax Act 1948, contains any provisions regarding imposition of tax on distribution of programme through dish antenna and the circular issued by the second-respondent ultra-vires the Act.

9. This renders necessity to consider the relevant provisions of the Act. This act cane into force on Ist October, 1948 and was enacted for the purpose of imposition of tax on amusement and other entertainment in the State of Bihar. The relevant provisions in the definition Clause (Sec. 2 of the Act) reads as follows: 2(a) "Admission" include admission as a spectator or as one of an audiance and admission for the purpose of amusement by taking part in an entertainment;

2(b)...

2(bb)...

2(c)...

2(d) "entertainment" includes any exhibition performance, amusement, game, sport or rac