Patna High Court · 2013
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.3582 of 2013 With Interlocutory Application No.1297 of 2013 ====================================================== Dishnet Wireless Limited a company registered under the Companies Act having its registered office at 5th Floor, Spencer Plaza, 769, Anna Salai, Chennai and Circle office at 4th Floor, Maharaja Kameshwar Complex, Fraser Road, Patna through its authorized signatory Mr. Umesh Bhagat, S/o late Jagdish Bhagat, resident of Flat No. 102, Sindur Apartment, Nageshwar Colony, Police Station-Budha Colony, Boring Road, District- Patna- 800001, presently posted as Senior Manager, Finance, Dishnet Wirless Limited. .... .... Petitioner Versus 1. The State of Bihar through Secretary, Department of Commercial Taxes, Government of Bihar, Patna. 2. The Secretary, Department of Commercial Taxes, Government of Bihar, Patna. 3. The Commissioner, Department of Commercial Taxes, Government of Bihar, Patna. 4. The Deputy Commissioner, Patliputra Circle, Department of Commercial Taxes, Government of Bihar, Patna. 5. The Assistant Commissioner, Patliputra Circle, Department of Commercial Taxes, Government of Bihar, Patna. 6. The Commercial Tax Officer, Patliputra Circle, Department of Commercial Taxes, Government of Bihar, Patna ====================================================== .... .... Respondents Appearance : For the Petitioner :
Legal Reasoning
Mr. Y.V. Giri, Senior Advocate Mr. Sanjeev Kumar, Advocate For the Respondents-State: Mr. Lalit Kishore, PAAG Mr. Vikash Kumar, AC to PAAG 2 Patna High Court CWJC No.3582 of 2013 (6) dt.31-07-2013 2 / 6 ====================================================== Mr. Piyush Lal, Advocate. CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE ASHWANI KUMAR SINGH ORAL ORDER (Per: HONOURABLE THE CHIEF JUSTICE) 6. 31-7-2013 Interlocutory Application No.1297 of 2013: This Application for amendment of the writ Petition is made by the writ petitioner to bring on record the assessment order dated 23rd January 2013 and to challenge the same. On the facts and in the circumstances of the case, the Application is allowed. The amendment will be carried out in red ink within one week from today.
Decision
Interlocutory Application stands disposed of. Civil Writ Jurisdiction Case No. 3582 of 2013: This Petition under Article 226 of the Constitution has been filed by a service provider, one Dishnet Wireless Limited, for a direction restraining the respondent authorities from levying value added tax on SIM Card provided by the writ petitioner to its customers and to challenge the order of assessment dated 23rd January 2013 treating the SIM Card as a commodity exigible to the value added tax under the Bihar Value Added Tax Act, 2005 (hereinafter referred to as “the Act of 2005”). Learned counsel Mr. Y.V. Giri has appeared for the petitioner. He has submitted that the petitioner provides service to its customers. As a part of service, the SIM Card is supplied for the mobile phones. Supply of SIM Card is, therefore, a 3 Patna High Court CWJC No.3582 of 2013 (6) dt.31-07-2013 3 / 6 service to the customers not exigible to the value added tax under the Act of 2005. He has submitted that time and again the Hon‟ble Supreme Court has held that the SIM Card is not a commodity exigible to sales tax. In support thereof, he has relied upon the judgments of the Hon‟ble Supreme Court in the matters of Bharat Sanchar Nigam Ltd. and Another v. Union of India and Others, {(2006) 3 SCC 1} and of Idea Mobile Communication Limited v. Commissioner of Central Excise and Customs, Cochin, {(2011) 12 SCC 608}. Mr. Y.V.Giri has next submitted that this Court ought to entertain the Petition under Article 226 of the Constitution against the order of assessment dated 23rd January 2013. He has submitted that the order of assessment made by the Commercial Taxes Officer is wholly without jurisdiction. Such an order cannot be challenged in appeal before the appellate authority. The only remedy available to the writ petitioner is a Petition under Article 226 of the Constitution. In support thereof he has relied upon the judgments in the matters of Whirlpool Corporation v. Registrar of Trade Marks, Mumbai and Others, {(1998) 8 SCC 1; of Popcorn Entertainment and Another v. City Industrial Development Corpn. and Another, {(2007) 9 SCC 593); and the judgment of this Court in the matter of M/s Indian Oil Corporation Ltd. v. The State of Bihar & Ors., {2006(3) PLJR 146}. Mr. Y.V. Giri has also relied upon the order of the Commercial Taxes Tribunal, Bihar made in a group of revision petition nos. BT-15, 16, 17 and 18 of 2002 filed by M/s Reliance Telecom Limited. He has submitted that the Tribunal has held the SIM Card to be a part of service, liable to the service tax and not the value added tax. The order of the Tribunal is binding upon the 4 Patna High Court CWJC No.3582 of 2013 (6) dt.31-07-2013 4 / 6 authorities below. Therefore, also the Commercial Taxes Officer could not have assessed value added tax on the SIM Card supplied by the writ petitioner to its customers. In support thereof he has relied upon the judgment of the Hon‟ble Supreme Court in the matter of Union of India and others v. Kamlakshi Finance Corporation Ltd., (A.I.R. 1992 S.C. 711). The Petition is contested by the learned Principal Additional Advocate General Mr. Lalit Kishore. He has submitted that against the order of assessment a statutory remedy of appeal lies before the appellate authority. A Petition under Article 226 of the Constitution, therefore, cannot be entertained. He has next submitted that the definition of the word “goods” under Clause (l) to Section 2 of the Act of 2005 leaves no scope for holding that the SIM Card is not a commodity exigible to the value added tax under the Act of 2005. Clause (l) to Section 2 of the Act of 2005 defines the „goods‟ to mean, “all kinds of movable property including livestock, computer software, any electronic chip used for the purpose of storing or transmitting data or voice and all materials, commodities and articles (as such or in some other form) but excluding newspapers, electricity, actionable claims, stocks, shares or security. Explanation.- For the purposes of this clause, materials, commodities and articles,- (i) attached to or forming part of an immovable property which are agreed to be severed under the contract of sale; or (ii) sold or supplied as such or in some other form in the execution of works contract, 5 Patna High Court CWJC No.3582 of 2013 (6) dt.31-07-2013 5 / 6 lease or hire purchase, shall be deemed to be goods within the meaning of this clause;’ As submitted by Mr. Lalit Kishore, the term “goods” specifically includes “electronic chip used for the purpose of storing or transmitting data or voice”. This terminology does not leave an iota of doubt that a SIM Card used in the mobile phone for storing data and for transmitting the voice message is a commodity or the goods within the meaning of the Act of 2005. We are also unable to agree that the Hon‟ble Supreme Court has held the SIM Card not to be the goods exigible to the sales tax. In the matter of Bharat Sanchar Nigam Ltd. and Another v. Union of India and Others (supra), while referring to the handsets of a telephone, the Hon‟ble Supreme Court in paragraph 84 of the judgment held, “There is no sales element apart from the obvious one relating to the handset, if any. That and any other accessory supplied by the service provider in our opinion remain to be taxed under the State sales tax laws.” The Hon‟ble Supreme Court observed, “As far as SIM Cards are concerned, the issue is left for determination by the assessing authorities.” The aforesaid judgment, therefore, cannot be held to be a final authority whether or not the SIM Card is a „goods‟ exigible to the sales tax/value added tax. Similarly, in the matter of Idea Mobile Communication Limited v. Commissioner of Central Excise and Customs, Cochin (supra), the matter at dispute was the levy of service tax on supply of the SIM Cards. The question whether the SIM Card is a „goods‟ or a „commodity‟ exigible to the sales tax or the value added tax was not the matter directly at issue. However, having regard to the explicit definition under the above 6 Patna High Court CWJC No.3582 of 2013 (6) dt.31-07-2013 6 / 6 referred Clause (l) to Section 2 of the Act of 2005, we are of the opinion that the question whether the SIM Card is a „goods‟ liable to value added tax under the Act of 2005 is not open for discussion. We are also not impressed by the submission that the order of the Commercial Taxes Officer is wholly without jurisdiction and that this Court ought to entertain the Petition under Article 226 of the Constitution. It is the statutory duty of the Commercial Taxes Officer to make assessment of the sale made by dealer for the purpose of tax leviable under the Act of 2005. The order may be right, wrong or otherwise but it cannot be said to have been made without jurisdiction or that the assessment order made by the Commercial Taxes Officer suffered from inherent lack of jurisdiction. It cannot be gainsaid that against the order of assessment, statutory remedy under the Act of 2005 is available to the writ petitioner. In view of the statutory remedy available under the Act, the Petition against the said order need not be entertained. in limine. For the aforesaid reasons, the Petition is dismissed (R.M. Doshit, CJ) Pawan/- (Ashwani Kumar Singh, J)