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TMI Blog2016 (9) TMI 1115X X X X Extracts X X X X X X X X Extracts X X X X ..... the annexure, the petitioner had mentioned it as exempted goods, while giving the commodity code, the petitioner gave the wrong commodity code, by mentioning it as 363 , which is the commodity code for Television Sets. This resulted in an impugned assessment being made and tax being demanded. If some mistake has been committed by the dealer, can he be given an opportunity to rectify the mistake? - Held that: - Section 84 of the TNVAT Act, provides for such a remedy and the Assessing Officer is empowered to rectify the mistake - if on account of the mathematical error committed by the dealer resulted in a wrong assessment imposing higher rate of tax, such mathematical error can be corrected. This is what was requested by the petitioner st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s been settled in the case of BSNL v. Union of India and Others, reported in (2006) (145) S.T.C. 91, which was considered by the Hon 'ble Supreme Court in the case of Idea Mobile Communication Ltd., v. Commissioner of Central Excise and Customs, Cochin, reported in 2011 (23) S.T.R. 433 (S.C.), wherein the Hon 'ble Supreme Court held as follows:- 13. It would be appropriate to mention that later on the said Escotel Mobile Communications Ltd. merged with the appellant company i.e., M/s. Idea Mobile Communication Ltd. The aforesaid decision of the Kerala High Court was under challenge in this Court in the case of BSNL vs. Union of India reported in (2006) 3 SCC 1. The Supreme Court has framed the principal question to be decided i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, however the assessing authorities will have to keep in mind the following principles: if the SIM card is not sold by the assessee to the subscribers but is merely part of the services rendered by the service providers, then a SIM card cannot be charged separately to sales tax. It would depend ultimately upon the intention of the parties. If the parties intended that the SIM card would be a separate object of sale, it would be open to the Sales Tax Authorities to levy sales tax thereon. There is insufficient material on the basis of which we can reach a decision. However we emphasise that if the sale of a SIM card is merely incidental to the service being provided and only facilitates the identification of the subscribers, their credit an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt from services provided. They are considered part and parcel of the services provided and the dominant position of the transaction is to provide services and not to sell the material i.e. SIM Cards which on its own but without the service would hardly have any value at all. Thus, it is established from the records and facts of this case that the value of SIM cards forms part of the activation charges as no activation is possible without a valid functioning of SIM card and the value of the taxable service is calculated on the gross total amount received by the operator from the subscribers. The Sales Tax authority understood the aforesaid position that no element of sale is involved in the present transaction. 5. Thus, in the light of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... given an opportunity to rectify the mistake. Undoubtedly, Section 84 of the TNVAT Act, provides for such a remedy and the Assessing Officer is empowered to rectify the mistake. 8. If such is the situation, then the next question would be what sought of mistakes that can be rectified. It may be true that the power of rectification is not equivalent to the power of review. However, if on account of the mathematical error committed by the dealer resulted in a wrong assessment imposing higher rate of tax, in the considered view of this Court, such mathematical error can be corrected. This is what was requested by the petitioner stating that he has wrongly given the commodity code. That apart, the petitioner would state that he has got all t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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