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BHARAT SANCHAR NIGAM LIMITED versus COMMISSIONER TRADE TAX U.P., LUCKNOW

High Court of Judicature at Allahabad

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Bharat Sanchar Nigam Limited v. Commissioner Trade Tax U.P., Lucknow - SALES/TRADE TAX REVISION No. 2134 of 2005 [2006] RD-AH 5995 (20 March 2006)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

COURT NO.55

TRADE TAX REVISION NO. 2134 OF 2005

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TRADE TAX REVISION NO.2135 OF 2005

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TRADE TAX REVISION NO.2136 OF 2005

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TRADE TAX REVISION NO.2137 OF 2005

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TRADE TAX REVISION NO.2138 OF 2005

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TRADE TAX REVISION NO.2139 OF 2005

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TRADE TAX REVISION NO.2140 OF 2005

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TRADE TAX REVISION NO.2141 OF 2005

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TRADE TAX REVISION NO.2143 OF 2005

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TRADE TAX REVISION NO.2144 OF 2005

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TRADE TAX REVISION NO.2145 OF 2005

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TRADE TAX REVISION NO.2146 OF 2005

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TRADE TAX REVISION NO.2147 OF 2005

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TRADE TAX REVISION NO.2148 OF 2005

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TRADE TAX REVISION NO.2149 OF 2005

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TRADE TAX REVISION NO.2150 OF 2005

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TRADE TAX REVISION NO.(293) OF 2005

M/S Bharat Sanchar Nigam Limited.      ......Applicant

Versus

Commissioner Trade Tax U.P., Lucknow.   .....Opp. Party.

***************

Hon'ble Rajes Kumar, J.

Present 17 revisions under section 11 of U.P. Trade Tax Act (hereinafter referred to as "Act") are directed against the order of Tribunal dated 31.08.2005 arising from the provisional assessment orders for the month of April, May, June, July, August, September, October, November, December, 2003,  January, April, May, June, July, August, September and October, 2004 for the assessment years 2003-04 and 2004-05.

Applicant is a Company incorporated under the Indian Companies Act, 1956 engaged in providing the telecom services. The claim of the applicant is that while providing telecom service no element of sale is involved as contemplated under section 2 (h) read with Section 3-F of the Act, therefore, the amount received towards rent from the subscribers is not liable to tax under the U.P. Trade Tax Act. Assessing authority had assessed the tax on the rental charges, alleged to have been received towards the transfer of right to use the goods following the decision of the Apex Court in the case of State of U.P. and another Vs. Union of India and another, reported in JT 2003 (1) SC, 574.

Heard learned counsel for the parties.

Learned counsel for the applicant submitted that  the financial year for the assessment years 2003-04 and 04-05 have been expired and the final assessment orders can be passed. He further submitted that the decision of the Apex Court in the case of State of U.P. and another Vs. Union of India and another (Supra)  has been over ruled  by the Larger Bench of the Apex Court in Writ Petition  (Civil) No.183 of 2003, Bharat Sanchar Nigam Ltd. and another Vs. Union of India and others decided on 02.03.2006, Apex court has  over ruled its earlier decision in the case of State of U.P. and another Vs. Union of India and another (Supra) and held that Electromagnetic waves, is not "goods" and, therefore, applicant can not be subjected to Trade Tax under section 3-F of the Act. Copy of the judgment has been provided to this Court. Learned Standing Counsel has not disputed the aforesaid submission of the learned counsel for the applicant. He submitted that the matter may be sent back to the assessing authority to pass fresh assessment orders in the light of the decision of the Apex Court in the case of Bharat Sanchar Nigam Ltd. and another Vs. Union of India and others (Supra).

In view of the aforesaid decision of the Apex Court, order of the Tribunal is liable to be set aside and all the provisional assessment orders are quashed. Assessing authority is directed to pass the final assessment orders for the assessment years 2003-04 and 04-05 in the light of the decision of the Apex Court in the case of Bharat Sanchar Nigam Ltd. and another Vs. Union of India and others (Supra), in case, if it has not been passed.

In the result, all the revisions are allowed. Order of the Tribunal is set aside. All the provisional assessment orders are quashed. Assessing authority is directed to pass the final assessment orders for the assessment years 2003-04 and 04-05 in the light of the decision of the Apex Court in the case of Bharat Sanchar Nigam Ltd. and another Vs. Union of India and others (Supra)

Dt.20.03.2006

R./


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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