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Door Sanchar Mahdaliya Abhiyanta v. The Commissioner Of Trade Tax U.P. & Another - WRIT TAX No. 1472 of 2003  RD-AH 6017 (20 March 2006)
CIVIL MISC. WRIT PETITION NO.1472 OF 2003
CIVIL MISC. WRIT PETITION NO.1473 OF 2003
CIVIL MISC. WRIT PETITION NO.1474 OF 2003
Door Sanchar Mandaliya Abhiyanta, Etawah. ......Petitioner
The Commissioner of Trade Tax U.P.,
Lucknow and another. .....Respondents.
Hon'ble Rajes Kumar, J.
Present three writ petitions are directed against the order of Tribunal dated 08.12.2003 for the assessment years 2000-01, 2001-02 and 2002-03, by which Tribunal has allowed the waiver applications in part and directed the petitioner to deposit 25% of the disputed amount of tax and the balance amount has been waived.
Petitioner is a Government Company incorporated under the Indian Companies Act, 1956 engaged in providing the telecom services. The claim of the petitioner 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, received towards the transfer of right to use the goods relying upon 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. First appeals filed by the petitioner were dismissed. Petitioner filed second appeals before the Tribunal alongwith waiver and stay applications. Tribunal has passed the impugned order on the waiver applications during the pendency of the appeal.
Heard learned counsel for the parties.
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 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, petitioner can not be subjected to Trade Tax under section 3-F of the Act.
In view of the aforesaid decision of the Apex Court, petitioner has strong prima-facie case in its favour. Accordingly, order of the Tribunal is set aside and the waiver applications are allowed. Tribunal is directed to decide the stay applications. Tribunal is further directed to dispose of the appeals itself expeditiously 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 the result, all the writ petitions are allowed. Order of the Tribunal dated 08.12.2003 is set aside. Waiver applications are allowed. Tribunal is directed to decide the stay applications. Tribunal is further directed to dispose of the appeals itself expeditiously 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).
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