IN THE HIGH COURT OF KERALA AT ERNAKULAM
WA No. 589 of 2007()
1. BHARAT SANCHAR NIGAM LTD.,
... Petitioner
Vs
1. THE ASSISTANT COMMISSIONER (ASSESSMENT)
... Respondent
2. COMMISSIONER OF COMMERCIAL TAXES DEPT.
3. STATE OF KERALA, REPRESENTED BY
For Petitioner :SMT.S.K.DEVI
For Respondent : No Appearance
The Hon'ble the Acting Chief Justice MR.K.S.RADHAKRISHNAN
The Hon'ble MR. Justice M.N.KRISHNAN
Dated :03/04/2007
O R D E R
K.S.RADHAKRISHNAN, Ag.C.J.
&
M.N.KRISHNAN, J.
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W.A.No.589 OF 2007
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Dated this the 3rd day of April, 2007
JUDGMENT
K.S.Radhakrishnan, Ag.C.J.
Writ petition was preferred seeking a writ of certiorari to quash
Exts.P1 to P6 assessment orders. This court considered the
justification for approaching this court directly challenging the
assessment orders and held that the remedy of the petitioner is to file
an appeal against the assessment orders and dismissed the writ
petition. We have gone through the assessment orders and have also
gone through the judgment of the Apex Court in Bharat Sanchar
Nigam Ltd. and another v. Union of India and others – (2006) 14 KTR
115 (SC) holding that the department can assess on the sale element
of handset involved in the process of granting telephone connections..
We have also perused the objections filed by the BSNL before the
assessing authority. The stand taken by the BSNL is that the BSNL
WA 589/2007 Page numbers
does not sell any handsets to its subscribers in providing the basic
telephone services. It is pointed out that the handsets being provided
to subscribers by the BSNL are only incidental to the service to
facilitate the subscriber to avail the telephone service. It is also
pointed out that in the event of the subscriber surrendering the
telephone connection, the handset provided to him is retrievable. It is
also pointed out that it does not confer the subscriber of any right and
as such there is no discernible sale of the handset involving service.
It is also pointed out that in the case of SIM cards provided by BSNL to
a subscriber under Mobile Phone service, the same is given to the
subscriber to gain access to the network. The SIM card given to the
subscriber always remains as the property of BSNL and the subscriber
is liable to return the SIM card to BSNL in the event of surrender of
connection. Hence there is no discernible sale value in the
transaction as well. It is proper to address the assessing authority.
In the light of the above circumstances it is only appropriate to give a
direction to reconsider Exts.P1 to P6 assessment orders after giving an
opportunity to the assessee to be heard and also to produce evidence
before the assessing authority in support of the contentions . The
assessing authority shall consider those contentions and pass
WA 589/2007 Page numbers
appropriate orders. This writ appeal is disposed of directing the
assessing authority to reconsider Exts.P1 to P6 and pass appropriate
orders within three months from the date of receipt of a copy of this
judgment and after giving notice to the appellant.
K.S.RADHAKRISHNAN,
(Ag.CHIEF JUSTICE)
M.N.KRISHNAN,
(JUDGE)
mt/-