High Court Kerala High Court

Bharat Sanchar Nigam Ltd vs The Assistant Commissioner … on 3 April, 2007

Kerala High Court
Bharat Sanchar Nigam Ltd vs The Assistant Commissioner … on 3 April, 2007
       

  

  

 
 
  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/-