Ravindra Singh Chaudhary v. Union Of India / The State Of Rajasthan / Additional Chief Secretary / Additional Commissioner of Central Goods and Service-tax, Jaipur / Dream11 Fantasy Private Limited
[Citation -2020-LL-1016-57]

Citation 2020-LL-1016-57
Appellant Name Ravindra Singh Chaudhary
Respondent Name Union Of India / The State Of Rajasthan / Additional Chief Secretary / Additional Commissioner of Central Goods and Service-tax, Jaipur / Dream11 Fantasy Private Limited
Relevant Act CGST
Date of Order 16/10/2020
Judgment View Judgment
Keyword Tags nature of business • business activity • actionable claim • supply of goods • public interest

HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR D.B. Civil Writ Petition No. 20779/2019 Ravindra Singh Chaudhary S/o Shri Gopal Singh Ji Choudhary, Aged About 33 Years, R/o 83, Purohit Ji Ka Bas, Behind Geejgarh House, Hawa Sadak, 22 Godam, Jaipur-302006 ----Petitioner Versus 1. Union Of India, Through Ministry Of Finance, Department Of Revenue, Government Of India, North Block, New Delhi-110001 Through Secretary 2. State Of Rajasthan, Through Chief Secretary, Government Of Rajasthan, Government Secretariat, Jaipur. 3. Additional Chief Secretary, Home Department, Government Of Rajasthan, Government Secretariat, Jaipur. 4. Additional Commissioner Of Central Goods And Service Tax, Jaipur Zone, Ncr Building, Statue Circle, C Scheme, Jaipur-302005 5. Dream11 Fantasy Private Limited, Through Its Managing Director, 1901, A-Wing, Naman Midtown, Senapati Bapat Marg, Elphinstone-West Mumbai, Mumbai City, Maharashtra-400013 ----Respondents For Petitioner(s) : Mr. Punit Singhvi through VC For Respondent(s) : Mr. Vikram Nankani, Sr.Adv. with Mr. Arvind Lakhawat through VC Mr. H.V. Nandwana through VC Mr. Karan Bharihok through VC Mr. Siddharth Ranka through VC Mr. R.D. Rastogi, ASG through VC Mr. Rajesh Maharshi, AAG through VC HON'BLE CHIEF JUSTICE HON'BLE MR. JUSTICE MAHENDAR KUMAR GOYAL (2 of 20) [CW-20779/2019] JUDGMENT RESERVED ON :: 01/10/2020 JUDGMENT PRONOUNCED ON :: 16/10/2020 BY COURT(PER HON BLE CHIEF JUSTICE): 1. This writ petition has been filed in nature of Public Interest Litigation, inter-alia, alleging that respondent No.5- Dream 11 Fantasy Private Limited provides platform to its users for playing sports and games on virtual platform, such as fantasy cricket, football, kabaddi, basketball and hockey. It is asserted by petitioner that said virtual platform, namely Dream-11, allow its users to register and play various games, to form their own teams made up of real players for cricket, football, kabaddi and NBA with maximum budget of 100 crores. It is further asserted that users initially have to pay amount of `100/-, out of which 20% is retained by respondent No.5-Dream 11, whereas 80% of remaining balance is transferred towards winning amount for game. It is alleged that game being played on aforesaid platform is nothing else but betting on cricket team. It is further alleged that online fantasy sports games are games of chance, thereby constituting illegal act of gambling/ betting and that respondent Nos.1 to 4 are not prohibiting this illegal act. 2. Further, petitioner prays for action to be taken against private-respondent No.5 under Central Goods and Service Tax Act, 2017 (for short, CGST Act ) and Rules made thereunder for evasion of GST. In this respect, it is alleged that private-respondent No.5 is not paying GST under proper (3 of 20) [CW-20779/2019] classification, which should be @ 28% and only pays 18% GST that too on amount received from participant and retained by it, which effectively amounts to evading GST on balance 80% amount, which is transferred towards winning amount for game. petitioner referred to Section 65-B(15) of Finance Act, 1994 for definition of betting or gambling , Section 2(13) of CGST Act for definition of consideration and rule 31-A of Central Goods and Service Tax Rules, 2018 (for short CGST Rules ). petitioner also referred to Circular No. 27/01/2018- GST dated 04.01.2018 issued in respect of horse racing and on such basis alleges that GST should have been payable on 100% of amount received. According to petitioner, out of every `100/- received by private respondent No.5 from participants, `80/- are set aside in escrow account for common price pool and same is distributed amongst winners and on such sum no GST is paid which, is being paid on remaining amount retained as Platform Fee i.e. `20/-. petitioner also alleges that even on said actionable claim amount of `80/- kept in escrow account and distributed amongst winners, GST should be payable by private respondent No.5, that too @ 28%. In substance, present PIL seeks action against private respondent No.5 Dream 11 by raising two issues, namely:- (1) Whether online fantasy sports games offered on Dream 11 platform are gambling/betting ? (2) Whether respondent No.5-Dream 11 is wrongly classifying its virtual online game under wrong entry for (4 of 20) [CW-20779/2019] GST and, therefore, violating Rule 31(A) (3) of CGST Rules, 2018 in order to evade GST? 3. Respondent Nos. 2 & 3, namely State of Rajasthan and Additional Chief Secretary, Home Department, Government of Rajasthan have filed detailed counter affidavit dated 26.08.2020 opposing PIL stating therein that PIL petitioner has merely made untenable allegations without any facts and substance. It is further submitted that Punjab & Haryana High Court in case of Varun Gumber Vs. Union Territory of Chandigarh, 2017 Cri LJ 3827, vide judgment dated 18.04.2017 and order dated 15.09.2017 passed by Hon ble Supreme Court dismissing Special Leave Petition against aforesaid judgment have come to hold that fantasy games of Dream 11 are games of mere skill and their business has protection under Article 19(1)(g) of Constitution of India. counter affidavit submitted by respondent Nos. 2 and 3, further referred to detailed judgment of Bombay High Court dated 30.04.2019 in Criminal Public Interest Litigation Stamp No. 22/2019 - Gurdeep Singh Sachar Vs. Union of India & Ors., (2019) 75 GST 258 (Bombay). said PIL challenging activities of respondent No.5 Dream-11 as gambling and betting as well as contention regarding alleged GST evasion was dismissed. These respondents have also referred to earlier judgment of this Court in D.B. Civil Writ Petition No. 6653/2019 - Chandresh Sankhla Vs State of Rajasthan, reported in 2020 SCC Online Raj 264, wherein similar contentions alleging online fantasy sports games offered by respondent No.5 as gambling and (5 of 20) [CW-20779/2019] betting were rejected and, therefore, it was prayed that petition filed is in essence to personal gain and popularity and no legitimate case has been made out. 4. Respondent No.5 Dream-11 has also filed detailed counter affidavit dated 12.08.2020 opposing PIL. additional affidavit came to be submitted by said respondent, which is on record. In said affidavit, reference has been made to Federation of Indian Fantasy Sports (FIFS) including its Charter, Ombudsmen Rules, Leadership Team and Self Regulation Guidelines. aforesaid documents were taken into consideration by Madurai Bench of Madras High Court, which was pleased to rely on aforesaid documents in its order dated 25.10.2019 passed in Criminal O.P. (M.D.)No. 7087/2017. Our attention was drawn towards SLP (Diary No.) 43346/2019 and 41632/2019 filed by Union of India impugning judgment of Bombay High Court in Gurdeep Singh Sachar (Supra) and orders in this case dated 04.10.2019, 13.12.2019, 31.01.2020 & 06.03.2020 passed by Hon ble Supreme Court, 276th Law Commission of India report and show cause on demand notice dated 27.05.2020, issued by Commissioner of CGST. Reference has also been made to further detailed judgment dated 18.04.2017 passed by Punjab & Haryana High Court in case of Varun Gumber (Supra), which, after considering in detail online fantasy games offered by platform of Dream 11 and relying upon judgment of Hon ble Supreme Court, has come to hold that fantasy games were games of mere skill and that business of Dream-11 had (6 of 20) [CW-20779/2019] protection of Article 19 (1) (g) of Constitution of India and same did not amount to gambling. It was further brought on record that SLP (Diary No.) 27511/2017 filed against judgment rendered by Punjab & Haryana High Court came to be dismissed by Hon ble Supreme Court vide order dated 15.09.2017. Respondents also relied upon judgment of this Court in case of Chandresh Sankhla (Supra). It would be relevant to note herein that respondent No.5 pointed in its counter affidavit that in show cause notice cum demand notice dated 27.05.2020, issued by Commissioner of CGST, it was contention of Department that games offered are games of skill by relying upon judgment of Hon ble Supreme Court in case of Dr. K.R. Lakshmanan Vs. State of Tamil Nadu, (1996) 2 SCC 226. 5. Shri R.D. Rastogi, learned Additional Solicitor General appearing on behalf of respondent-Union of India submitted that present PIL deserves to be dismissed as it was not maintainable contending that issue of gambling/betting had already been closed by Hon ble Supreme Court in its order dated 13.12.2019 and only issue kept open was regarding GST. He further submitted that issue of GST has already been raised by Department in its review petition filed before Bombay High Court, which is currently pending and insofar as issue of gambling/betting is concerned, stand taken by Department in show cause notice dated 27.05.2020 issued to Dream-11 and submissions made by learned Additional Solicitor General by relying upon order dated (7 of 20) [CW-20779/2019] 13.12.2019 passed by Hon ble Supreme Court, made it clear that nature of business run by private respondent No.5 was neither gambling nor betting. 6. All parties represented through their respective counsels were heard through video conferencing and written submissions were filed by respondent No.5. 7. It would be relevant at outset to take into consideration fact that common definition of gambling/betting relied upon by PIL petitioner as well as by Union of India in its SLP filed before Hon ble Supreme Court is available in Section 65(B) (15) of Finance Act, 1994 which reads as under:- Section 65-B. Interpretations: (15) Betting or gambling means putting on stake something of value, particularly money, with consciousness of risk and hope of gain on outcome of game or contest, whose result may be determined by chance or accident, or on likelihood of anything occurring or not occurring. 8. Therefore, it is clear from above that test applicable is whether result of fantasy game offered by respondent No.5 is determined merely by chance or accident or on likelihood of anything occurred or not occurred. 9. Hon ble Supreme Court has consistently held that games of skill are distinguishable from gambling and enjoy protection under Article 19(1) (g) of Constitution of India. Hon ble Supreme Court in case of State of Bombay Vs. R.M.D. Chamarbaugwala & Anr., AIR 1957 SC 699, also came to hold that competitions which involve substantial skill are not gambling activities and such competitions are business activities (8 of 20) [CW-20779/2019] entitled to protection guaranteed by Article 19(1) (g) of Constitution of India. It has been held in para 23 as under:- 23. Applying these principles to present Act, it will not be questioned that competitions in which success depends to substantial extent on skill and competitions in which it does not so depend, form two distinct and separate categories. difference between two classes of competitions is as clear-cut as that between commercial and wagering contracts ... 10. While deciding issue pertaining to fantasy games offered on platform of respondent No.5, in case of Varun Gumber (supra), in reasoned judgment dated 18.04.2017, Punjab & Haryana High Court analyzed business model of respondent No.5 in detail and held that same did not amount to gambling because it was game of mere skill as opposed to game of chance. High Court inter-alia noted and favourably considered following important aspect of fantasy games offered by respondent No.5 herein:- 5. What is fantasy sports game . b) Any fantasy sports game offered by them is game which occurs over pre-determined number of rounds (which may extend from single match/sporting event to entire league or series in which participating users select, build and act as managers/selectors of their virtual team . 6. Requirments of material and considerable skills by user in drafting of virtual team and playing fantasy sports game: c) drafting of virtual team involves exercise of considerable skill as user must first assess relative worth of each athlete/sportsperson as against all athletes/sportspersons available for selection. user has to study rules and make evaluations of athlete s strengths and weaknesses based on these rules. (9 of 20) [CW-20779/2019] d) Further, user s virtual team cannot be entirely or substantially consisting of athletes from single real-world team. In case of fantasy cricket and fantasy football games, Dream-11 rules stipulate that not more than 7 of 11 athletes in virtual team may be from single real-world team.. . f) Therefore, users engaged in participating in Dream-11 s fantasy sports read and understand rules of game published by Dream-11, and make their assessment of athletes and selection of athletes in their virtual team on basis of anticipated statistics of their selection; for example, in fantasy cricket game, user needs to evaluate, in case of batsman, . g) Furthermore, users have to select one player from amongst their virtual team selection as captain and another player as vice-captain . gg) In course of such selection of teams and making decisions on drafting of players and designated captains/vice-captains, user must also overcome team biases and prejudices while selecting athletes . 11. High Court of Punjab & Haryana not only considered various submissions made by respondent No.5 herein, but also referred and relied in great details on judgment of Hon ble Supreme Court in Dr. K.R. Lakshmanan (supra), while holding as under:- 19 Even from submissions and contentions of respondent-company and factual position admitted in writ petition, I am of view that playing of fantasy game by any particular user involves virtual team by him which would certainly requires considerable skill, judgment and discretion. participant has to assess relative worth of each athlete/sportsperson as against all athletes/sportspersons available for selection. He is required to study rules and regulations of strength of athlete or player and weakness also. several factors as indicated above submitted by respondent-company would definitely affect result of game . (10 of 20) [CW-20779/2019] 20. respondent company s website and success in Dream-11 s fantasy sports basically arise out of users exercise, superior knowldege, judgment and attention. I am of further view that element of skill and pre-dominant influence on outcome of Dream-11 s fantasy than any other incidents are and therefore, I do not have any hesitation in holding that any sports game to constitute game of mere skill and not falling within activity of gambling for invocation of 1867 Act and thus, respondent-company, is, therefore, exempt from application of provisions, including penal provisions, in view of Section 18 of 1867 Act. Equally so, before I conclude, I must express that gambling is not trade and thus, is not protected by Article 19(1)(g) of Constitution of India and thus, fantasy games of respondent- company cannot said to be falling within gambling activities as same involves substantial skills which is nothing but is business activity with due registration and paying service tax and income tax, thus, they have protection granted by Article 19(1) (g) of Constitution of India. It can be safely deduced from these findings that result of fantasy games offered by respondent No.5 is not determined merely by chance or accident, but skill of participant determine result of game having predominant influence on outcome of fantasy game. Whether any particular team in real world match wins or loses, is also immaterial as selection of virtual team by participant involves choosing players from both teams playing in real world. It is also clear that offering fantasy games of Dream-11 involving substantial skills is business activity and not wagering having protection granted by Article 19(1)(g) of Constitution. SLP filed by said Varun Gumber against above judgment was dismissed by Hon ble Supreme Court vide its order dated 15.09.2017. Union of India has neither filed SLP against (11 of 20) [CW-20779/2019] said judgment dated 18.04.2017 of Punjab & Haryana High Court nor filed any review of order dated 15.09.2017 and have thus, accepted findings contained therein. We are, therefore, of view that issue whether fantasy games played on platform of respondent No.5 are or are not gambling/betting activities was thus closed and decided in favour of respondent No.5. 12. It is not in dispute that out of every `100/- received by respondent No.5 from each of participant in fantasy game contest, approximately `80/- are set aside in escrow account, which is payable on completion of fantasy game contest towards prize amongst winning participants. Since this actionable claim of `80/- is distributed amongst winners, while only remaining amount is retained as Platform Fee, this actionable claim is enforceable in law and is not part of wagering contract. 13. In PIL filed against respondent No.5 before Bombay High Court in Gurdeep Singh Sachar (supra), both issues, as raised in instant PIL, were raised and by detailed judgment dated 30.04.2019, Bombay High Court was pleased to dismiss said PIL holding that online fantasy cricket of respondent No.5 was game of mere skill, as distinguished from game of chance. Dream-11 fantasy game does not involve risking money or playing stakes on result of game or event, hence, same did not amount to gambling/betting. Bombay High Court also held that respondent No.5 is correctly paying 18% GST by classifying its services under entry 998439 and is not liable to pay GST @ 28% as applicable to online (12 of 20) [CW-20779/2019] gambling services under entry 999692 and that Rule 31-A(3) of CGST Rules, 2018 was not applicable as said actionable claim as per Schedule III and Section 7(2) of Act, are not considered as supply of goods or supply of services and, therefore, authorities have rightly not taken steps against Dream-11. 14. decision of Bombay High Court was challenged in four different SLPs. Three SLPs were filed by parties therein. One SLP was also filed by said Varun Gumber. SLP filed by PIL petitioner as well as by Varun Gumber were dismissed. In SLP filed by Union of India, Hon ble Supreme Court dismissed SLP on 13.12.2019, but limited to gambling/betting issue and permitted Union of India to file review so far as GST aspect was concerned. review petition is pending before Bombay High Court. SLP filed by State of Maharashtra which was listed later on 06.03.2020 is pending, wherein judgment of Bombay High Court is stayed. In meanwhile, said Shri Gurdeep Singh Sachar also filed application seeking clarification of order dated 13.12.2019. said application was also dismissed by Hon ble Supreme Court after hearing parties vide order dated 31.01.2020 holding as follows:- It is reiterated that in accordance with our Order dated 13.12.2019, only scope of review filed in Bombay High Court is with respect to GST and not to revisit issue as to whether gambling is or not involved . 15. present PIL re-agitates above two issues and according to learned Additional Solicitor General, it is not maintainable. (13 of 20) [CW-20779/2019] 16. Another PIL in case of Chandresh Sankhla (supra) was filed before this Court raising very same allegations of gambling/betting against respondent No.5, which was dismissed vide judgment dated 14.02.2020 after considering in detail above judgments of High Courts of Bombay and Punjab & Haryana as well as order of Hon ble Supreme Court dismissing challenge to them holding as under:- 15. This Court finds that issue of treating game Dream 11 as having any element of betting/gambling is no more res integra in view of pronouncements by Punjab & Haryana High Court and Bombay High Court and further SLPs have also been dismissed by orders of these High Courts. 16. Consequently, this Court finds no merit in present Public Interest Litigation petition and same is accordingly dismissed . 17. judgment of this Court in case of Chandresh Sankhla (supra) has been referred in judgment dated 24.07.2020 passed by Madurai Bench of Madras High Court in Criminal O.P. (MD) No.6568/2020- D. Siluvai Venance Vs. State, wherein Madras High Court has also distinguished case of fantasy sports games of Dream-11 from online gaming in general in para 37 thereof. 18. Law Commission Report No.276, in paragraph 3.13 has opined that fantasy games such as fantasy football falls within gaming , as distinguished from betting . 19. Commissioner of CGST, Mumbai has now issued show cause notice dated 25.07.2020 to respondent No.5 raising certain protective demand of service tax, which is not subject matter of present PIL and would be dealt with by authorities in accordance with law. However, in paragraphs 9.3 (14 of 20) [CW-20779/2019] and 10 of said show cause notice, GST Department has categorically taken stand by relying on judgment of Hon ble Superme Court in Dr. K.R. Lakshmanan(supra) that online fantasy game of respondent No.5 is game of skill. This stand taken by GST Department is despite referring in paragraph 13.6(i) & (ii) of show cause notice to order dated 06.03.2020 of Hon ble Supreme Court in pending SLP. submissions fairly advanced by learned Additional Solicitor General appearing on behalf of respondent-Union of India are also to effect that issue of gambling/betting has already been finally decided by Hon ble Supreme Court vide order dated 13.12.2019, whereby only issue kept open is regarding GST, which is pending consideration in review petition before Bombay High Court. Therefore, it is clear that even as per stand of Union of India and their GST Department, business of respondent No.5 is not gambling/betting, however issue of payment of GST is pending consideration. 20. We have also considered submission of respondent No.5 that online fantasy games of respondent No.5 are not operating in total regulatory vacuum and on affidavit it has been submitted that they are subject to self-regulation by industry body known as Federation of Indian Fantasy Sports (FIFS) founded in 2017, of which respondent No.5 is member. FIFS is Section 8 Company incorporated under Companies Act, 2013 for purpose of self-regulation and promotion of best practices in online fantasy sports services and contests offered in India, which has issued Charter for Online (15 of 20) [CW-20779/2019] Fantasy Sports Platforms, which inter-alia imposes following conditions:- 1.3.6 Pay-to-play contest formats on OFSP will not be offered by Member to users who are less than eighteen (18) years of age. . 1.3.12 In contests on OFSP, skill component of such contests is predominantly determined via manual team selection by users. As such, users will not be offered opportunity or option to auto-select or auto-fill any part or portion of their fantasy sports teams. 1.3.13 All users will be restricted from drafting or editing their fantasy team after passing of predetermined and pre-declared deadline. All contests on OFSP will lock prior to commencement of underlying real-world competition to which contest relates, and users will not be permitted to make any changes to their fantasy team during course of match or afterwards, which affects tabulation of points with respect to such match. 1.3.14 team selection by user will have to conform to skill-set based combinations prescribed by Member s rules and terms and conditions. 1.3.15 contest on OFSP will require user to draft fantasy team composed of at least number of athletes that would comprise starting line-up of one (1) team in real-world sports match; provided always that minimum number of players in fantasy team shall be five (5). 1.3.16 At any given time, user will be restricted from selecting more than seventy five percent (75%) of his/her fantasy players that constitute his/her fantasy team or squad from single real-world team/squad in single contest. Any fractional amounts shall be rounded down to nearest whole number. 1.3.17 Each Member will ensure that only real- world players and athletes are permitted to be drafted for fantasy sports teams. 1.3.18 winning outcome will not be based on score, point-spread, or any performances or (16 of 20) [CW-20779/2019] results or partial results of any single real-world team or any combination of real-world teams. 1.3.19 winning outcome will not be based on score, point spread or performance of single athlete in any single real-world sports match,. 1.3.20 winning outcome of contest on OFSP offered by Member will not be based on Esports contests or virtual, randomised, simulated or historical sports matches. .. 1.3.27 Members will not offer gambling services 21. rules and regulations contained in said Charter are to ensure that games run by its members are games of skill and are not in form of any gambling/betting. FIFS has also framed Ombudsman Rules, which mandate Ombudsman to be retired Judge of Hon ble Supreme Court or of State High Court, to ensure that any disputes or grievances of members of public who participate in online fantasy games are redressed promptly and in fair and transparent manner. Presently, Hon ble Mr. Justice A.K. Sikri (retired) is Ombudsman. FIFS has representative structure with some of most credible and distinguished board members including former Director-General of Police, former Secretary, Sports Authority of India, and former Secretary, BCCI. Further, bare perusal of leadership team of FIFS shows that it has eminent persons from industry as well as ex-members of regulatory bodies, who are tasked with ensuring compliance with applicable laws and aforesaid Charter. FIFS presently has over 35 of largest fantasy sports companies as members, who cater to 99% of fantasy sports users in India. fantasy sports industry is regarded as next sunshine industry of India which is growing (17 of 20) [CW-20779/2019] exponentially and already contributing thousands of crores to Government exchequer. They also contain safeguards to ensure that persons below 18 years of age are not allowed to participate and that public is not being misled or cheated and that there is transparency in financial matters, prizes etc. FIFS has also issued Self-Regulation Guidelines on Advertising Online Gaming by adopting IAMAI Guidelines to ensure that advertisements are fair, transparent and not misleading. guidelines prohibit advertisements by members suggesting any gambling/betting activities and there is penalty clause as well for violation. Being FIFS Member, respondent No.5 can offer only such game which provides opportunity to participant which is akin to real- life selector and includes critical elements such as:- (a) fantasy game offered shall relate to minimum of one complete real-life upcoming sports match; (b) user needs to select at least same number of athletes in his virtual team as in real life match (e.g. 11 players in Cricket/Football and 7 players in Kabaddi) from competing teams in real life match; and (c) fantasy game must not allow any changes in virtual team after real-life match commences. Any variation in said approved formats, such as shorter versions than complete real-life match or allowing lesser players than real-life match to be selected in Fantasy Sport will not emulate real life selector, and are not even permitted by FIFS. We are of view that since respondent No.5 being (18 of 20) [CW-20779/2019] Member of FIFS has also submitted its regulations and charter of FIFS, no public interest element survives for online gaming formats offered by them. Our findings are for format of online fantasy games offered by Dream-11 being compliant with Charter of FIFS, and may not be applicable if stipulations contained in Charter of FIFS are not followed in letter and spirit. 22. We also agree with submission of respondent No.5 that fantasy sports formats like that of Dream-11 are globally recognized as great tool for fan engagement, as they provide platform to sports lovers to engage with their favorite sports along with their friends and family. This legitimate business activity having protection under Article 19(1)(g) of Constitution contributes to Government Revenue not only vide GST and income tax payments, but also by contributing in increased viewership and higher sports fan engagement, thereby simultaneously promoting even real world games. 23. Certain submissions made in response to present PIL and FIFS Charter have not been considered in earlier judgments on issue. We, therefore, have dealt with same in some detail and in view of same, even if all earlier judgments of different High Courts are ignored, we are of independent view, particularly based on Charter of FIFS, of which Dream-11 is Member, that participant of online fantasy sports platforms offered by Dream-11 App, who enrolls in online fantasy sport game and puts monetary stakes therein, performs role similar to that of real life team (19 of 20) [CW-20779/2019] manager/selector, which requires use of substantial knowledge, strategy, skill, and adroitness against other participants. participant is actually playing online sport and not gambling, betting or wagering on outcome of any game or event inasmuch as result achieved by player of online fantasy sports on completion of corresponding real life match, is wholly independent of final result or outcome of such real life match / game / event. 24. Accordingly, first issue as to whether online fantasy sports games offered on Dream-11 platform are gambling/betting is decided against PIL petitioner. Since result of fantasy game depends on skill of participant and not sheer chance, and winning or losing of virtual team created by participant is also independent of outcome of game or event in real world, we hold that format of online fantasy game offered by respondent No.5 is game of mere skill and their business has protection under Article 19(1)(g) of Constitution of India, as repeatedly held by various Courts and affirmed by Hon ble Supreme Court. 25. Insofar as second issue as to whether Dream-11 is wrongly classifying its virtual online games under wrong entry for GST and is also violating Rule 31A (3) of CGST Rules, 2018 to evade GST is concerned, respondent No.5 has submitted that we may consider findings contained in paragraphs 7 to 16 of judgment of Bombay High Court in case of Gurdeep Singh Sachar (Supra) as arguments advanced on their behalf. However, in light of above findings on issue of (20 of 20) [CW-20779/2019] gambling/betting, we deem it appropriate to leave said second issue for GST authorities to consider in accordance with law. 26. We are of considered view that PIL has been filed without any real public interest, without disclosing relevant facts and without proper research. Various judgments in respect of respondent No.5 itself have not even been referred in this PIL. PIL is misconceived. 27. Consequently, we find no merit in instant PIL petition and same is accordingly dismissed with costs. (MAHENDAR KUMAR GOYAL),J (INDRAJIT MAHANTY),CJ KAMLESH KUMAR / Ravindra Singh Chaudhary v. Union Of India / State Of Rajasthan / Additional Chief Secretary / Additional Commissioner of Central Goods and Service-tax, Jaipur / Dream11 Fantasy Private Limited
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