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Ms Bharti Telemedia Limited ... vs Chief Secretory on 30 January, 2014
Showing the contexts in which doctrine of pith and substance appears in the document
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Entertainment Tax Act has to be declared ultra vires the Constitution of India to the extent of the levy of entertainment tax on Direct-to- Home (DTH). 11. The learned counsel for the petitioner Mr. Indrajit Sinha also reiterated the same submissions. 12. It is the submission of the learned counsel for the respondents that the Jharkhand Entertainment Tax Act, 2012 does not, in any manner, transgress into the subject of "service" for which service tax is levied under Entry 92C of the Union List. Placing reliance upon number of decisions, the learned counsel submitted that the ‗doctrine of pith and substance' has to be applied to determine as to which Entry the impugned legislation relates and that the Court 7 has to look at the substance of the matter. Placing reliance upon various judgments, the learned counsel submitted that the Jharkhand Entertainment Tax Act, 2012 and the Jharkhand Entertainment Tax Rules, 2013 are constitutionally valid. The learned counsel submitted thatDirect-to-Home (DTH) service has two aspects - one is providing "service" and the other is providing "entertainment" through Direct-to-Home (DTH) service and the entertainment tax is levied on the entertainment part which is within the legislative competence

language of the entries, but some of the entries in the different lists may overlap and sometimes may also appear to be in direct conflict with each other. It is then the duty of this Court to reconcile the entries and bring about harmony between them. Entries of the List I and List II must be read in conjunction with each other and for this purpose over a period of time a number of doctrines have been evolved with judicial pronouncements to avoid and sort out the conflict if any between the law making bodies like Doctrine of Harmonious Construction, Pith and Substance, Ancillary Legislation, Colourable Legislation, The Aspect Theory etc. 25. Where the legislative competence of the legislature of any State

questioned on the ground that it encroaches upon the legislative competence of Parliament to enact a law, the question one has to ask is whether the legislation relates to any of the entries in List I or List III. If the State law relates to any of the entries in List I or List III, then the Parliament‟s legislative competence must be upheld. As held by Hon‟ble Supreme Court that where there are three Lists containing a large number of entries, there is bound to be some overlapping among them. In such a situation, the doctrine of pith and substance has to be applied to determine as to which entry does a given piece of legislation relate. Once it is so determined, any incidental trenching on the field reserved to the other Legislature is of no consequence. 13 26. On the scheme of distribution of powers, we may refer to some of the leading judgments on the subject. The principles of interpretation have been succinctly summarized and enunciated by the Hon‟ble Supreme Court in Hoechst Pharmaceuticals Ltd. v. State of Bihar, (1983) 4 SCC 45 which are as under :- ―It is obvious that Article-246 imposed limitations

considered whether a fair reconciliation can be achieved by giving to the language of the Union Legislative List a meaning which, if less wide than it might in another context bear, is yet one that can properly be given to it and equally giving to the language of the State Legislative List a meaning which it can properly bear. The non obstante clause in Article 246(1) must operate only if such reconciliation should prove impossible. Thirdly, no question of conflict between the two Lists will arise if the impugned legislation, by the application of the doctrine of ‗pith and substance' appearsto fall exclusively under one list, and the encroachment upon another list is only incidental.‖