2014 (3) TMI 739 - SC - VAT and Sales Tax

Assessment of sales tax Chargeability of electromagnetic waves or radio frequency - Whether it was open to the AO to assess sales tax by including charges pertaining to electromagnetic waves or radio frequency? - Held that - Judgment in BHARAT SANCHAR NIGAM LTD. (BSNL) Versus UNION OF INDIA 2006 (3) TMI 1 - Supreme court followed - It was not open to the AO to assess the appellant to sales tax by including charges pertaining to electromagnetic waves or radio frequency - Yet, in terms of the decision in the earlier Judgment, the said component was taken into consideration for raising the demand under reference - The earlier assessment, out of which the instant proceedings have arisen, was partly unjustified - The Authority was only justified in raising a demand based on the rental collected by the appellant whilst rendering services, as also charges collected for the equipment supplied to consumers It is just and appropriate to set aside the proceedings initiated by the Sales Tax Authorities and require the Assessing Authority to re-determine the sales tax in the matter - The entire proceedings initiated against the appellant are set aside, with liberty to the Assessing Officer to re-compute the sales tax and raise a demand thereon Decided in favour of assessee.

Issues:
1. Interpretation of sales tax assessment based on previous court decisions.
2. Determination of goods for the purpose of Article 366(29-A)(d).
3. Assessment of sales tax on charges related to electromagnetic waves or radio frequency.
4. Justification of sales tax based on rental charges and equipment supply.
5. Setting aside proceedings and re-computation of sales tax by the Assessing Authority.

Issue 1:
The Supreme Court considered the assessment of Sales Tax based on a previous judgment and noted that the assessment was made in accordance with the decision in "State of U.P. Vs. Union of India". It was highlighted that a subsequent judgment in "Bharat Sanchar Nigam Limited Vs. Union of India" modified the earlier decision. The Court emphasized the importance of deliverable goods in a transfer of user and clarified the distinction between the sale of goods and the provision of services in the context of telecommunication.

Issue 2:
The Court addressed the definition of goods under Article 366(29-A)(d) and ruled that electromagnetic waves or radio frequencies are not considered goods for the purpose of the article. It was specified that goods in telecommunication are limited to handsets provided by the service provider, while the status of SIM cards was left for determination by the Assessing Authorities.

Issue 3:
Regarding the assessment of sales tax on charges related to electromagnetic waves or radio frequency, the Court concluded that it was unjustified for the Assessing Officer to include such charges. The Sales Tax Authority was deemed justified in raising a demand based on rental charges for services and equipment supplied to consumers. The Court set aside the earlier assessment and directed the Assessing Authority to re-determine the sales tax in line with the principles outlined in the "Bharat Sanchar Nigam Limited" case.

Issue 4:
The Court found that the previous assessment, which included charges related to electromagnetic waves or radio frequency, was partly unjustified. It was determined that the Sales Tax Authority was only justified in raising a demand based on rental charges for services and equipment supplied to consumers. Consequently, the Court set aside the proceedings initiated by the Sales Tax Authorities and allowed the Assessing Officer to re-compute the sales tax within the permissible limits established by the Court.

Issue 5:
In light of the above analysis, the Court decided to set aside all proceedings against the appellant and granted the Assessing Officer the liberty to re-compute the sales tax and raise a demand in accordance with the law. The Civil Appeals were disposed of accordingly, with no costs imposed. The Court referred to a similar controversy previously decided and applied the same terms to the instant appeals, ensuring consistency in judgment.

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