High Court of Judicature at Allahabad
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Bharat Sanchar Nigam Ltd Thru' The G.M. v. Commissioner, Trade Tax, U.P. Lucknow - SALES/TRADE TAX REVISION No. 157 of 2004  RD-AH 1808 (24 January 2006)
Court no. 55
Trade Tax Revision no. 157 of 2004.
Trade Tax Revision no. 158 of 2004.
Trade Tax Revision no. 159 of 2004.
Trade Tax Revision no. 160 of 2004.
Trade Tax Revision no. 161 of 2004.
Trade Tax Revision no. 162 of 2004.
Trade Tax Revision no. 163 of 2004.
Trade Tax Revision no. 164 of 2004.
Trade Tax Revision no. 165 of 2004.
Trade Tax Revision no. 166 of 2004.
Trade Tax Revision no. 167 of 2004.
Trade Tax Revision no. 168 of 2004.
Trade Tax Revision no. 169 of 2004.
Trade Tax Revision no. 170 of 2004.
Trade Tax Revision no. 171 of 2004.
Trade Tax Revision no. 172 of 2004.
Trade Tax Revision no. 173 of 2004.
Trade Tax Revision no. 180 of 2004.
M/S Bharat Sanchar Nigam Limited ......................... Revisionist.
Commissioner of Trade Tax, U. P. Lucknow.........................Respondent.
Hon'ble Rajes Kumar, J.
These eighteen revisions under Section 11 of U. P. Trade Tax Act (hereinafter referred to as Act) arise from the common order of Tribunal dated 5.2.2004 by which, the Tribunal has decided the eighteen appeals by a common order. In all the revisions, common questions of law are involved and therefore, all the revisions are being decided by a common order.
Applicant is a Company incorporated under the Indian Companies Act and engaged in providing telecom services to its subscribers. Prior to 1.10.2000 this service was provided by the Department of Telecommunication, Union of India. Thereafter w. e. f. 1.10.2000 the company was incorporated in the name of Bharat Sanchar Nigam Limited. By office memo dated 30.9.2000, entire assets and liability of Department of Telecommunication and services etc. have been taken over by the Company. Assessing Authority for the period involved in the present revision levied tax on the rental charges under Section 3-F of the Act in view of the decision of Hon'ble Supreme Court in the case of State of U. P. Vs. Union of India reported in 2003 (1) JT Page 574. Applicant filed appeals against the assessment orders before the Joint Commissioner (Appeals). All the appeals have been registered but subsequently dismissed as non maintainable on the ground that the admitted tax was not deposited, treating the assessed tax as the admitted tax, which was required to be deposited for the maintainability of appeals under Section 9 of the Act. Petitioner filed appeals against the order of First Appellate Authority before the Tribunal. Tribunal vide its impugned order, rejected all the appeals.
Heard Sri Subodh Kumar, learned Counsel for the applicant and learned Standing Counsel.
Learned Counsel for the applicant contended that at no stage, applicant has admitted the liability of tax on the rental charges. He submitted that a review petition was filed before Hon'ble Supreme Court which has been admitted and the matter has been referred to Larger Bench being a important question of law and therefore, the matter is now further subjudice before Hon'ble Supreme Court in respect of the issue whether the rental charges, charged by the petitioner from its subscribers is liable to tax under Section 3-F of the Act and, therefore, the amount assessed can not be treated as the admitted tax. In my view, orders of First Appellate Authority as well as Tribunal are not sustainable. It is not disputed that the applicant has not admitted liability of tax on the rental charges at any stage and has disputed the liability before the Assessing Authority and in the appeal before the First Appellate Authority and therefore, the amount assessed on the rental charges, can not be said to be admitted tax required to be deposited under Section 9 for maintainability of appeal. It is not disputed that the review petition has been admitted by Apex Court in the case of State of U. P. Vs. Union of India reported in 2003 (1) JT Page 574 which is basis for levy of tax on the rental charges and the matter has been referred to the Larger Bench being an important question of law and therefore, the matter has again become subjudice before the Apex Court in respect of issue whether the rental charges charged by the applicant from its subscribers is liable to be taxed under Section 3-F of the Act. In these circumstances, in my view, the tax assessed by the Assessing Authority cannot be treated as admitted tax.
In the result, all eighteen revisions are allowed. Order of Tribunal and the First Appellate Authority are set aside and the matter is remanded back to the Joint Commissioner (Appeals), Ghaziabad to decide the appeals on merit. In case if appeals are not registered, they may be registered. The Appellate Authority may also consider the Stay Application, which have been filed alongwith, the appeals expeditiously.
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