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TMI Blog2021 (8) TMI 1139X X X X Extracts X X X X X X X X Extracts X X X X ..... act which is the foundational document in connection with the transactions involved in the present cases. This Court is of the view that the subscription contract of the relevant period as well as the Provisions of Telecom Regulatory Authority of India and the regulations framed thereunder, by which the petitioner was governed even at the relevant point of time, are required to be scrutinized and considered by the Tribunal to come to a correct finding in connection with subscription contract of the petitioner with its consumers - This Court is also of the view that the factual errors which have been committed by the learned Tribunal are required to be taken care of by the learned Tribunal at the first instance for arriving at a considered decision. This Court is not inclined to rectify such factual errors, which has been committed by the learned Tribunal, in writ jurisdiction. This Court is of the considered view that these matters are fit for remand before the learned Tribunal for fresh consideration in accordance with law - the matters are remanded to the Tribunal for fresh consideration in accordance with law - appeal allowed by way of remand. - W.P.(T) No. 1506 of 2020 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... copy of the registration certificate of the petitioner under Jharkhand Value Added Tax Act, 2005 as well as Central Sales Tax Act, 1956 has been produced by the petitioner before this Court. The Certificate of registration reflects that the petitioner was registered as a wholesale trader, retail trader and works contractor and the list of principle commodities in which the petitioner was dealing, was also reflected in the registration certificates. 7. The argument has been advanced from the records of W.P.(T) No.1506 of 2020 relating to the financial year 2008-09. For the financial year 2008-2009, the authority under the Jharkhand Value Added Tax Act, 2005 passed order of assessment on 12.03.2011 under Section 35 (5) (b) of the aforesaid Act of 2005 and a demand notice arising out of the order of assessment was issued on 26.03.2011. 8. The petitioner filed an appeal before the appellate authority. The appellate authority dismissed the appeal and was of the view that the assessing authority had rightly held that Set Top Box is a system and in order to operate it, Dish Antenna fittings and Recharge Vouchers are required and upon assembly of the three items, a system gets ready ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as been committed by the learned Tribunal goes to the root of the matter. 12. The learned counsel while referring to the errors committed by the learned Tribunal has specifically pointed out that the Tribunal has committed an error of fact by recording and holding at multiple places that Set Top Boxes that were sold to the customer were a part of non-traded goods, although, it was the specific case throughout that the Set Top Boxes were sold to the customers through channel though at a loss. It has also been submitted that this is a fatal error since Set Top Boxes were admittedly sold by the petitioner on which VAT was paid and does not form a part of non-traded goods, which were given free of cost. 13. The second error pointed out by the learned Senior counsel is that the learned Tribunal has also refused to refer to the subscription contract at all by mentioning that the same has not been approved by the Central Government and has termed to be a unilateral contract which does not have the force of law. In this regard, the learned Senior counsel submits that when the parties are governed by a contract, then it is essential for the authorities to go into the terms of the cont ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The learned Senior counsel for the petitioner has also submitted that from perusal of the assessment orders in all these cases which is the foundation of all subsequent proceedings, only the following two issues arise for consideration in the present batch of writ petitions: i) Whether any VAT can be levied on the traded goods (STB and remote) by treating the purchase price as its sale price or by taxing the loss sustained by the Petitioner on sale of the set- up box? ii) Whether the VAT Authorities can levy tax on value of the non-traded goods brought in by the Petitioner through Form F from other States by way of stock transfer and installed on entrustment basis without any consideration in the customer premises and the property of which at all times remains with the Petitioner Company? 19. The learned Advocate General appearing on behalf of the State, on the other hand, has submitted that the factual errors have been rightly pointed out by the learned Senior counsel for the petitioner. There is no dispute that such factual errors go to the root of the matter and rectification of factual errors may not be done in writ jurisdiction under Article 226 of the Consti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lso of the view that the factual errors which have been committed by the learned Tribunal are required to be taken care of by the learned Tribunal at the first instance for arriving at a considered decision. This Court is not inclined to rectify such factual errors, which has been committed by the learned Tribunal, in writ jurisdiction. Accordingly, this Court is of the considered view that these matters are fit for remand before the learned Tribunal for fresh consideration in accordance with law. 24. Since these matters are being remanded to the learned Tribunal, no further deliberation is required in connection with the merits of the case. 25. Accordingly, the impugned judgments passed by the learned Tribunal are hereby set aside. These matters are remanded to the Tribunal for fresh consideration in accordance with law. All questions are left open for the parties to be agitated before the learned Tribunal. The petitioner as well as the State will appear before the learned Tribunal on 23rd of August, 2021. Upon their appearance, the learned Tribunal is directed to proceed in accordance with law and decide the case as expeditiously as possible in view of the fact that the mat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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