2003 (2) TMI 2 - SC - VAT and Sales Tax

Service Tax Department of Telecommunication (1) Other taxes (2) Used by subscriber (3) Sale (4) Supply of service along with goods (5) Composite contract (6) Distinction between sale and service

Issues Involved:
1. Whether the Department of Telecommunications (DoT) is a "dealer" under the U.P. Trade Tax Act, 1948.
2. Applicability of Section 3-F of the U.P. Act to rental charges collected by the DoT.
3. Legislative competence of the State to levy Trade Tax on telephone services.
4. Prohibition under Article 285(1) of the Constitution of India against imposing tax on Union property.
5. Whether providing telephone service is a sovereign function exempt from trade tax.

Detailed Analysis:

1. Whether the DoT is a "dealer" under the U.P. Trade Tax Act, 1948:
The High Court held that the DoT (Union of India) is not a "dealer" within the meaning of the Act. The Supreme Court, however, disagreed. According to Section 2(c) of the U.P. Act, a "dealer" includes any person or government that buys, sells, supplies, or distributes goods. The definition of "sale" in Section 2(h) includes the transfer of the right to use any goods for any purpose. The Supreme Court concluded that the DoT, engaging in the transfer of the right to use telephone instruments and systems, falls within the ambit of a "dealer" under the U.P. Act.

2. Applicability of Section 3-F of the U.P. Act to rental charges collected by the DoT:
The High Court confined Section 3-F only to goods involved in the execution of works contracts. The Supreme Court clarified that Section 3-F also applies to the transfer of the right to use any goods. The DoT's activity of providing telephone connections involves the transfer of the right to use telephone instruments and systems, thus falling under the purview of Section 3-F.

3. Legislative competence of the State to levy Trade Tax on telephone services:
The High Court ruled that the State lacks legislative competence to levy Trade Tax due to the imposition of service tax by the Parliament under the Finance Act, 1994. The Supreme Court rejected this view, stating that the imposition of service tax does not preclude the State from levying trade tax under the U.P. Act. The Court emphasized that the extended definition of "sale" in Article 366(29A) of the Constitution allows the State to tax the transfer of the right to use goods.

4. Prohibition under Article 285(1) of the Constitution of India against imposing tax on Union property:
The High Court's judgment, which was not supported by the respondents-DoT, was that Article 285(1) prohibits the State from imposing any tax on Union property. The Supreme Court did not address this issue in detail as it was conceded by the respondents-DoT.

5. Whether providing telephone service is a sovereign function exempt from trade tax:
The High Court held that providing telephone service through the DoT is a sovereign function and cannot be subjected to trade tax. The Supreme Court, however, did not support this view. The Court noted that the DoT's activity involves the transfer of the right to use telephone instruments and systems, which constitutes a "sale" under the U.P. Act, and thus, it is subject to trade tax.

Conclusion:
The Supreme Court set aside the High Court's judgment, holding that the DoT is a "dealer" under the U.P. Act, and its activity of providing telephone connections involves the transfer of the right to use goods, falling within the definition of "sale." The Court directed the DoT to file returns within three months, and the Assessing Authority to make fresh assessments and raise demands accordingly. The appeals were allowed with costs.

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