2009 (2) TMI 857 - HC - VAT and Sales Tax

-Levy of service tax or VAT - whether SIM cards attract sales tax as sale of goods? - Section 72 of the Kerala Value Added Tax Act

Summary

Issues:
Whether SIM cards attract sales tax as the sale of goods.

Analysis:
The judgment addresses the issue of whether SIM cards are subject to sales tax as the sale of goods. The matter was previously taken to the Supreme Court, which remanded it to the Assessing Officer. After the remand, the department accepted the contention of one of the parties. Different mobile operators in the State took divergent positions on the matter. Some companies, including BSNL and BPL Cellular Ltd., offered service tax on the value of SIM cards and recharge coupons, while others like ESCOTEL/IDEA paid sales tax and contested service tax liability. The Division Bench of the Court considered the liability for service tax on the value of SIM cards collected by service providers and held that it is part of the taxable service rendered by the service provider, and only the Central Government can collect service charges on such taxable services. The judgment directed the Assessing Officer to exclude the value of SIM cards and recharge coupons from the taxable turnover. Any sales tax collected on SIM cards and recharge coupons should be forfeited under the Kerala Value Added Tax Act, and refunds should be considered strictly in terms of the rules specified. The officer has the discretion to consider tax liability on the sale of other gadgets by mobile telecom operators.

In conclusion, the judgment clarifies the treatment of SIM cards in relation to sales tax and service tax liability. It emphasizes that the value of SIM cards and recharge coupons should not be included in the taxable turnover for sales tax purposes. Refunds, if applicable, should be processed according to the specified rules. The decision provides clarity on the taxation of SIM cards and reinforces the distinction between sales tax and service tax in this context.