9911796707
TMI Blog2007 (3) TMI 684X X X X Extracts X X X X X X X X Extracts X X X X ..... 145 STC 91; [2006] 3 VST 95; [2006] 282 ITR 273; [2006] 6 RC 276; [2006] 3 SCC 1. Sri Sridharan, learned Senior Counsel appearing for the petitioner, has raised several contentions, mainly amongst which is, that the Supreme Court had in the case of Bharat Sanchar Nigam [2006] 145 STC 91; [2006] 3 VST 95; [2006] 282 ITR 273; [2006] 6 RC 276; [2006] 3 SCC 1 emphatically declared that so far as the electromagnetic waves or radio frequency is concerned, it cannot be considered as goods and therefore there is no transfer of any right of ownership in goods within the meaning of article 366(29A)(d). The submission of the learned counsel for the petitioner, is that when once it has been declared that electromagnetic waves are not goods, levying ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ally takes place pursuant to the transaction in the light of the terms of the contract, a decision can be rendered. It may be that the assessing authority might have erred in some aspects, but that in itself cannot be a ground to bypass the appellate remedies and invoke the writ jurisdiction of this court. If once the law is declared it is only the question of application of that law which can be called in aid even before the appellate authority. But the decision of the Supreme Court rendered in the case of Bharat Sanchar Nigam Ltd., [2006] 145 STC 91; [2006] 3 VST 95 (SC); [2006] 282 ITR 273; [2006] 6 RC 276; [2006] 3 SCC 1 being one in the context of a transaction between a provider of mobile service, i.e., mobile phone connection and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er? (C) Is the nature of the transaction involved in providing telephone connection a composite contract of service and sale? If so, is it possible for the States to tax the sale element? (D) If the providing of a telephone connection involves sale? Is such sale an inter-State one? (E) Would the 'aspect theory' be applicable to the transaction enabling the States to levy sales tax on the same transaction in respect of which the Union Government levies service tax? Ultimately the five points determined are answered as under: (A) Goods do not include electromagnetic waves or radio frequencies for the purpose of article 366(29A)(d). The goods in telecommunication are limited to the handsets supplied by the service prov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it is in the nature of right to use goods, i.e., in the form of lease, there was scope for levy of some tax depending upon the facts. Further, while answering this point when the Supreme Court expressly states that the nature of transaction involved in providing telephone connection may be composite in nature and can involve both service and sales, this question was in the context of the constitutional definition under article 366(29A)(d) and in the context of examination of the nature of transaction by the providers of mobile phone services. The Supreme Court declared, while answering question C, that while the Central Government could levy tax on the service part of the transaction, the State Government could levy tax on the sales par ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the facts, etc., which is essentially the function of an appellate authority. In the absence of all basic facts while this court will be handicapped in examining the questions of law that would arise and in answering the issues that may arise, it is not desirable to lay down law or declare the law even without having full particulars of facts or before the factual aspects are finally settled, particularly in an area where developments are still taking place and the emerging trends are still to settle down and a declaration of law can have application in a large number of cases. It is very important that the correct legal position be stated after a proper examination of all aspects of the matter. It is for this reason, I am extreme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent has collected service tax in respect of the entire value of the contract by itself cannot be a determining factor to hold that it does not contain any goods on the sale of which sales tax can be levied by the State Legislature. Sales tax on that part of the contract involving an element of transfer of goods is in respect of that part of the contract involving transfer of some goods as the State Government is always competent to levy tax on sale of goods and whether any such goods is available or not being a question of fact in any given case and such question of fact being the basis for levy of tax by the authorities, it is not necessary to examine such question at this stage directly in writ jurisdiction on such aspects. Even if the au ..... X X X X Extracts X X X X X X X X Extracts X X X X
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