2013 (6) TMI 294 - HC - VAT and Sales Tax

Refund of taxes paid on the activity of the provision of passive infrastructure services - alternative to direct the said respondent to deposit the taxes paid for appropriation towards the tax liability arising out of the impugned order - Whether the provision of Passive Infrastructure Services by the Applicant to Sharing Operator s would tantamount to Transfer of right to use goods as per Section 2(1)(zc)(vi) of the DVAT Act, 2004 and therefore become liable to tax under the DVAT Act - how should the sale price as per section 9(1)(zd) of the DVAT act be determined for the purpose of discharging the liability under DVAT Act? - contention of petitioner that there was no transfer of the right in any goods by the petitioner to the sharing telecom operators and therefore the levy of VAT on the assumption to the contrary was wholly erroneous and untenable - Held that - The right to use the goods - in this case, i.e. passive infrastructure can be said to have been transferred by Indus to the sharing telecom operators only if the possession of the said infrastructure had been transferred to them. They would have the right to use the passive infrastructure if they were in lawful possession of it. There has to be, in that case, an act demonstrating the intention to part with the possession of the passive infrastructure. There is none in the present case. The passive infrastructure is shared by several telecom operators and that is why they are referred to as sharing telecom operators in the Master service agreement, MSA which merely permits access to the sharing telecom operators to the passive infrastructure to the extent it is necessary for the proper functioning of the active infrastructure. With several restrictions and curtailment of the access made available to the sharing telecom operators to the passive infrastructure and with severe penalties prescribed for failure on the part of the Indus to ensure uninterrupted and high quality service provided by the passive infrastructure, it is difficult to imagine how Indus could have intended to part with the possession of part of the infrastructure. That would have been a major impediment in the discharge of its responsibilities assumed under the MSA. The limited access made available to the sharing telecom operators is inconsistent with the notion of a right to use the passive infrastructure in the fullest sense of the expression. At best it can only be termed as a permissive use of the passive infrastructure for very limited purposes with very limited and strictly regulated access. It is therefore difficult to see how the arrangement could be understood as a transfer of the right to use the passive infrastructure. When Indus has not transferred the possession of the passive infrastructure to the sharing telecom operators in the manner understood in law, the limited access provided to them can only be regarded as a permissive use or a limited licence to use the same. The possession of the passive infrastructure always remained with Indus. The sharing telecom operators did not therefore, have any right to use the passive infrastructure. Thus it is declared that under the contract entered into between the parties there is no sale of goods and at any rate there is no deemed sale so as to attract levy of tax under the Karnataka Value Added Tax Act, 2003.

Summary

Issues Involved:
1. Whether the provision of Passive Infrastructure Services by the petitioner to Sharing Operators amounts to 'Transfer of right to use goods' under Section 2(1)(zc)(vi) of the DVAT Act, 2004.
2. Determination of the sale price for the purpose of discharging the liability under the DVAT Act.
3. Constitutionality of the impugned order under Articles 14, 19(1)(g), and 265 of the Constitution of India.

Issue-wise Detailed Analysis:

1. Transfer of Right to Use Goods:
The core issue was whether the provision of Passive Infrastructure Services by the petitioner to Sharing Operators constitutes a 'Transfer of right to use goods' as per Section 2(1)(zc)(vi) of the DVAT Act, 2004. The petitioner argued that the provision of Passive Infrastructure is essentially a service and does not involve the transfer of the right to use goods. The court examined the Master Service Agreement (MSA) between the petitioner and the sharing telecom operators, noting that the passive infrastructure remains under the control and possession of the petitioner. The sharing operators are granted limited access for specific purposes, and the agreement explicitly states that no right, title, or interest over the site or passive infrastructure is transferred to the sharing operators. The court concluded that the arrangement does not amount to a transfer of the right to use goods, aligning with the judgment of the Karnataka High Court in a similar case.

2. Determination of Sale Price:
The Commissioner had to determine the sale price under Section 9(1)(zd) of the DVAT Act. The Commissioner concluded that the entire consideration received by the petitioner from the sharing telecom operators for access to the passive infrastructure amounts to consideration for the transfer of the right to use goods. However, the court, having found that there was no transfer of the right to use goods, did not delve further into the determination of the sale price.

3. Constitutionality of the Impugned Order:
The petitioner contended that the impugned order was ultra vires Articles 14, 19(1)(g), and 265 of the Constitution of India, as well as Entry 97 of List I (Union List) of the 7th Schedule. The court, agreeing with the petitioner, found that the impugned order erroneously assumed a transfer of the right to use goods, leading to an incorrect levy of VAT. Consequently, the order was quashed.

Conclusion:
The court allowed the writ petition, quashing the impugned order dated 29.04.2011 and the subsequent assessment order dated 16.01.2012. It was held that the provision of Passive Infrastructure Services by the petitioner does not constitute a transfer of the right to use goods, and thus, is not liable to VAT under the DVAT Act, 2004. The court did not find it necessary to discuss other authorities cited, as the decision was based on the specific facts and terms of the agreement in this case. There was no order as to costs.