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2009 Supreme(UK) 408
2009 (2) UAD 811
UTTARAKHAND HIGH COURT
Hon’ble Mr. Justice Sudhanshu Dhulia
MCC Misc. Application No. 317 of 2009, in Writ Petition No. 2652 of 2007 (M/S)
M/S. DISH TV INDIA LIMITED & ANR. – Petitioners
Versus
STATE OF UTTARAKHAND & ORS. – Respondents
Decided on : 04.08.2009
For the Petitioners:Mr. Vipul Sharma, Advocate
For the Respondents:Mr. L.P. Naithani, Sr. Adv. as Advocate General
Headnote:Jurisprudence — Petitioners, providers of (DTH Service) through Satellite network, moved an application for return/discharge of the Bank Guarantee — That was opposed on the ground that the tax had already been collected by the petitioners from the subscribers of DTH Service and that, the applicants/petitioners were not entitled for return/refund of Bank Guarantee in view of the doctrine of unjust enrichment — Held — The instant case, not a case of refund of Tax already deposited and that, the refund or return or discharge of Bank Guarantee did not amount to the refund of Tax — Doctrine of unjust enrichment was not applicable in such case — Return of Bank Guarantee, accordingly ordered. (Paras 1 to 5, 8 to 17)
U;k;'kkL= & ;kphx.kksa }kjk ftUgsa mixzg ds tky (satellite network) ds ekè;e ls DTH Service izkIr gqbZ Fkh] cSad xkjUVh ds okfil djus gsrq ,d izkFkZuk i= nk;j fd;k x;k & bl izkFkZuk i= dk fojks/k bl vk/kkj ij fd;k x;k fd ;kfp;ksa }kjk DTH Service dk miHkksx djus okys miHkksDrkvksa ls dj olwy fd;k x;k Fkk vkSj mlh dkj.k ls izkFkhZ@;kphx.k cSad xkjUVh dh okilh vFkok Hkqxrku ds vf/kdkjh ugha Fks ftldk vk/kkj ^vuqfpr ykHkkfUor gksus dk fl)kUr* & fu.kZ; esa dgk x;k fd izLrqr dsl ,slk dsl ugha ftlesa iwoZ esa tek fd;k x;k VSDl ykSVk;k tk, vkSj mlh ds dkj.k cSad xkjUVh dk Hkqxrku vFkok okilh vFkok voeqDr fd;k tkuk VSDl okilh dk ekeyk ugha curk & ,sls dsl esa ^vuqfpr ykHkkfUor gksus dk fl)kUr* ykxw ugha gksrk & vr% cSad xkjUVh dks okfil fd;s tkus dk vkns'k rnuqlkj ikfjr fd;k x;kA
¼izLrj 1 ls 5] 8 ls 17½
The applicant/petitioner had challenged the levy of entertainment tax by the State, which was being realized under U.P. Entertainments and Setting Tax Act, 1979 (from hereinafter referred to as the Act). The writ petition of the petitioner was decided vide order dated 26th November, 2008 along with other writ petitions. The issue in those writ petitions was that the petitioners were providers of a Direct to Home Service (hereinafter referred to as DTH Serivice), which is done through a Satellite network and there is no provision for levy of entertainment tax from the petitioners under the Act and therefore the levy and the consequent recovery of entertainment tax from the petitioners has no authority of law. There were other grounds as well raised by the present petitioner and other petitioners in the said Bunch of writ petitions, all of which may not be a relevant discussion for our purposes.
2. What is however, relevant is that those writ petitions were decided in favour of the petitioners by the judgment of a learned Single Judge dated 26th November, 2006, whereby it was held that since there is no provision under the U.P. Entertainments and Betting Tax Act, 1979 for levy and recovery of entertainment tax from the petitioners, who provide DTH service, hence such levy and recovery is bad in the eyes of law. In short, the writ petitions were allowed. A Special Appeal bearing Special Appeal No. 23 of 2009 filed by the State against the said judgment of the learned Single Judge was also dismissed.
3. A statement has also been made by the learned Advocate General of the State Mr. L.P. Naithani than an S.L.P. filed against the judgment of this Court before the Hon’ble Apex Court has also been dismissed.
4. What remains then ! What remains all the same, is the fate of a “bank guarantee” deposited by the applicant/petitioner as a security by orders of this Court. As it happened at the time of admission of the writ petition filed, an interim order was granted by the learned Single Judge of this Court with certain conditions on 31st December, 2007. The portion of that order, which is relevant for our purpose must be referred to as follows:
“Considering the deposit made by the petitioners in Pithoragarh district to the tune of Rs. 19,64,000/- and taking into consideration and details of other districts of Champawat, Udham Singh Nagar and Nainital given by the petitioners at Page-V to the writ petition, if the petitioners furnish Bank Guarantee worth Rs. 15,00,000/- (fifteen lacs) in favour of the Registrar General of this Court within a period of two weeks, the respondents are restrained from proceeding further in the matter against the petitioners.
Stay application is disposed of accordingly.”
5. In compliance with the order of the learned Single Judge, a bank-guarantee was furnished by the applicant/petitioner to the tune of Rs. 15,00,000/- in faovur of the Registrar General of this Court. Now, since the petitioners have succeeded in their writ petitioners, they have moved an application for discharge of the bank-guarantee and for returning the bank guarantee to the petitioner/applicant. It is the application of the applicant/petitioner, which is before this Court and which is vehemently opposed by the learned Advocate General of the State Mr. L.P. Naithani.
6. Learned Advocate General of the State apart from stating that the matter is pending in Special Leave Petition before the Hon’ble Apex Court (which has since been dismissed according to the Advocate General) stated two grounds in his objections, these grounds, which have been stated in his objection are narrated as follows:
“(a) When the petition was heard there was no plea taken by the petitioner that the tax which has already been imposed and was being realized should be refunded. The petitioners also did not take these pleas in the special appeal for refund.
(b) By means of the present application, the petitioners have made a request for refund for such amount, whi
