TaxTMI 
TaxTMI 
2013 (6) TMI 81
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....uch order. Therefore, these appeals are taken up for consideration together and disposed of by this common order. For the purpose of convenience, the parties are referred to as they are arrayed to in Writ Appeal Nos. 3403-3439/2011 arising out of W.P. Nos. 11508/2011 and 12693-12727 of 2011. Factual Matrix 2. The assessee - M/s. Indus Towers Limited is a Company incorporated under the Companies Act, 1956, having its registered office in New Delhi and engaged in providing Passive Infrastructure and related operations and maintenance services to various telecommunication operators in India on a shared basis. The assessee is registered with the Department of Telecommunications (DoT) for providing Passive Infrastructure Services to mobile phone operators. The nature of services provided by the assessee was envisaged by Government of India initiative "MOST" (Mobile Operators Shared Towers). The DoT in a bid to create a high quality, low-cost, rapid, wide coverage mobile telecommunication network in India sought to propose, through the project "MOST", a system of sharing of passive infrastructure by the various telecom service providers. 3. The main object of sha....
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....D.G. sets, power management systems, batteries, electrical wiring etc., are used to ensure 24 x 7 power supply and to convert 240 Volts AC current into-48 DC current required for smooth running of BTS and other equipments. The air conditioners are used to keep the temperature below 35 degrees celsius inside the shelter room for smooth running of BTS. The assessee is also responsible for safety of the operators' equipments at its site. For all these services (site access, power supply, power conversion, air conditioning and safe keeping), the assessee receives a consolidated service revenue from its customers. 5. The right, title, possession and control in the passive infrastructure located at the telecommunication site including and not limited to the tower, shelter, diesel generator sets, batteries, air conditioners and electrical and civil works including any enhancement carried out by the assessee vest solely with the assessee. 6. The sharing operator i.e., the telecom service providers, on execution of a service contract, has the right to install equipments such as BTS equipment, associated antennae and active infra network equipments and other requisite equipme....
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.... the Sharing Operator's Equipments. The assessee will also provide for the Operation and Maintenance Services in relation to each site. All the infrastructure and equipments including passive infrastructure located at the site is controlled, managed and owned by the assessee. However, the Sharing Operator will be responsible for the operation and maintenance of their equipments, for which purpose, access will be provided to the authorized employees/sub-contractors of the Sharing Operator. The assessee retains the right to provide access to the site including any infrastructure to other telecom service providers, for any purpose at, its discretion. The Sharing Operators also retain the right to seek passive infrastructure services from other Passive Infrastructure Service Providers. The assessee is responsible for obtaining the necessary clearances/permissions/approvals from local/municipal authorities/departments. For undertaking the said infrastructure sharing activity, the assessee collects service fees. The fees shall be determined in accordance with the Master Service Agreement. The charges that are determined in the said agreement are in the nature of service charges. Th....
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....vided them on lease to the different telecom companies for their use on rental basis as per the agreement entered into between the assessee and the other telecom companies. Respondent has verified the agreement entered into between the parties. On verification of the agreement they noticed that the cellular operator shall maintain on all the active infrastructure equipment identification marks to show that the equipment is the property of the cellular operator. Under the terms and conditions in the lease agreement, it is evident that the infrastructure provider has given their right to use the equipment exclusively to the telecom company. No immovable property like land or building has been transferred or the right to use any immovable property has been transferred. The right to use the said equipment has been transferred exclusively to the telecom company. Therefore, the assessee is liable to pay the tax on the transfer of right to use goods and the levy cannot be found fault with. After referring to various other clauses it is stated that, the fuel charges are paid by the cellular company and the equipments are maintained on behalf of cellular company and only the possession and ....
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....shelter where DG and other equipments are kept can also be moved to the required place. From the perusal of the photographs, it is also seen that all the cable wires are outside and not laid into the earth or not embedded to any civil structure and these cables are movable. From the above facts and narration of the transactions of the assessee and the activities carried on by the assessee, the telecom towers are movable property and the leasing of these towers by collecting rentals are deemed to be a sale exigible to tax under the provisions of the KVAT Act, 2003. 10. The learned single Judge, after clubbing all the writ petitions, which were pending before him, where identical issues were raised, passed the impugned order disposing of all the writ petitions. The reasoning of the learned single Judge in holding that the activity carried on by the assessee falls under Article 366(29-A)(d) of the Constitution is as under :- "Various decisions rendered and referred to by the petitioner's counsel are in the context - what is movable and immovable. As a matter of fact finding, the reassessing authority having regard to the nature of the equipment used and its fixation to the ....
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....Value Added Tax (VAT) due to them from the first respondent - Union of India. In addition to that, they are also challenging the order passed by the learned Single Judge who has set aside the interest and penalty levied. The Union of India has filed third batch of writ appeals where, if the order of the learned Single Judge is given effect to, they have to return the service tax collected from these assessees under the provisions of the Finance Act, 1994. Rival Contentions 12. The learned Senior Counsel Sri. Venkataraman appearing for these assessees, assailing the impugned order contended that the assessees are the owners of Passive Infrastructure. It consists of a tower on a piece of land or roof top of a building, pre-fabricated shelters, DG sets, battery bank, power plant, power interface unit, air conditioners with some electrical works accessories like antennas, duplexers, combiners, transceivers, alarm extensions buses, control system etc. The same is operated and maintained by the assessees under the agreement entered into between the assessee and the shared operators. They give restricted access of their infrastructure to the service providers on non-exclu....
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....t 99.98% for efficiency, as otherwise they would not be entitled to consideration at all. Therefore, he submits that having regard to the nature and the terms of the contract, the activity carried on by the assessee, the purpose for which the shared operators have access to passive infrastructure, it is a contract of pure services and no element of sale is involved. Therefore, the learned Single Judge without proper application of mind, has erroneously held that the transaction in question falls within the mischief of Article 366(29A)(1)(d) of the Constitution of India. 14. Sri N.R. Bhaskar, learned Counsel appearing for Union of India contended, that the nature of activity carried on by the assessee and also the nature of transaction under the agreement is a case of simple service contract. The assessees have rightly registered themselves as service providers under the Finance Act, 1994 and they have been paying the service tax. There is no element of sale involved. It is a pure case of extending service and therefore, the question of imposing VAT on the same aspect would not arise. The learned Single Judge has not properly appreciated this aspect and committed an er....
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.... submits that the authority was justified in treating it as a deemed sale and levying of tax. It is in accordance with law and therefore no case for interference is made out. However, he contends that the learned Single Judge was not justified in issuing a direction to the State to collect the said tax from the Union of India. Similarly, the learned Single Judge was not justified in setting aside imposition of interest and penalty as no tax is paid under the Act at all. That portion of the order is illegal and requires to be set aside. He also contended, under the statute, a statutory appeal is provided to the Appellate Commissioner against the order passed by the Assessing Authority whose order can be challenged before the Karnataka Appellate Tribunal and therefore there is no justification for the assessees to bypass a statutory remedy and approach this Court under Article 226 of the Constitution of India, as the appellants have an alternative and efficacious remedy of an appeal. Hence, these writ appeals are not maintainable. Point for Consideration 16. In the light of the aforesaid facts and the rival contentions, the point that arise for our consideration in these a....
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....ing other technical requirements. By using this passive infrastructure, the mobile operators communicate with the mobile signals. This right of use is acquired legally by means of a contract called "Service Contract" read with M.S.A. Though the nomenclature of the contract is termed as "service contract", the reading of the terms of M.S.A. clearly indicates that there is a contract for "Transfer of Right to use passive infrastructure" which is "goods". 22. Neither under Article 366(29A)(d) nor under Section 2(29)(d) of KVAT Act, is there a clear prohibition for permitting multiple use of goods like mobile towers. What is important is that the legal right transferred to use the goods in favour of a person should not get affected during the period of contract by permitting another person for similar use. In case of Telecom Towers, two or more mobile operators can be permitted to use, by clearly demarcating the space in the towers without affecting each other rights. Here as per the requirement of mobile operator, a fixed space on the tower at a particular height/direction is allotted along with other infrastructure. By means of a contract, Indus (Transferer) transfers t....
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....e present case. Since the assessee is authorizing the use of same 'passive infrastructure' to multiple operators (up to 4 operators) he argues that the condition of 'non-executive' clause is not met. For the same reason, the condition of prohibition of owner transferring the same right to others is also not satisfied. 27. The examination of terms and condition of the MSA relating to providing access to the passive infrastructure or execution of "service contract" reveals that to start with, sharing operator indents requirement of access to the tower through "forecast". In response to the above request, Indus gives suggestions, comments and its plans for meeting the operator's requirement either with the existing sites or a new site. Then the operator sends a "site request" for which Indus will issue "site proposal indicating its place to implement site request along with applicable charges either at an existing site or creation of new site. If the 'site proposal' is acceptable to the sharing operator, he will issue a "service Order" in the prescribed form setting out the details of site required along with the technical requirement for installation of sharing operator....
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....ective control over the manner time and nature of use of the passive infrastructure by the virtue of his "right to use" acquired through the contract subject to the conditions of M.S.A. 30. On the other hand, Indus does not have the effective control over the manner, time and nature of use of a specified access to passive infrastructure allotted to a particular operator. Once contract is executed with specified access to the passive infrastructure, Indus is not free to either self use or to allot the same to any other operator. However, only on termination of the contract. Indus re-acquires the allotted access and is free to allot the same to any other operator if it is suitable for him. Though Indus can allot use of passive infrastructure to more than one operator, he is not free to change specified allotted use to a particular mobile operator. Hence, it is not true that Indus has got right to transfer the specified use of the passive infrastructure to more than one operator, though he may allow sharing of entire passive infrastructure by two or more operators at a particular site. For the same reason specified use or access granted to an operator cannot be treated a....
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....s made." 34. The cause for such amendment is the judgment rendered by the Madras High Court in the case of A.V. Meiyappan v. Commissioner of Commercial Taxes, Board of Revenue, Madras and Another [(1967) 20 STC 115]. it was held as under : "The question that we have to examine is whether the grant of the lease for exploiting the film by distribution for purposes of exhibition to the public amounts, in what are claimed to be special circumstances of the case by the department, to a sale of goods. Before adverting to these special circumstances relied upon by the department, we may turn to the terms of the agreement. What purports to be granted by way of lease are "the entire world negative rights" of the film and those rights are defined in the relevant clause 4(d) of the contract in this manner" "In buttressing this argument that what is really contemplated is not a lease of a right to exploit but an outright sale of the copyright in the production regarded as incorporeal movable property, reliance is placed by the department upon its assertion that what may be called the marketable value of the film becomes nil at the end of three years. In the counter-affidavit, it ....
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.... income-tax procedure as leading to any positive conclusion. It seems to us therefore that even if copyright is regarded as a species of movable property, the transactions in question do not connote sales at all." 35. This constitutional provision has been the subject matter of interpretation by various Courts. Firstly, Andhra Pradesh High Court in the case of Rashtriya Ispat Nigam Ltd v. Commercial Tax Officer, Company circle, Visakhapatnam [(1990) 77 STC 182] dealing with the taxable event under the provisions of the Andhra Pradesh General Sales Tax Act (6 of 1957) held as under : "The taxable event under section 5-E is the transfer of the right to use any goods. What does this phrase connote? This means that unless there is a transfer of the right to use the goods, no occasion for levying tax arises; providing a facility which involves the use of goods nor even a right to use the goods in not enough, there must be a transfer of that right. "The Transfer of a right is an event which has a double aspect. It is the acquisition of a right by the transferee, and loss of it by the transferor. The vestitive fact, if considered with reference to the transferee is a derivat....
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....The respondent undertook to supply sophisticate machinery to the contractors for the purpose of being used in execution of the contracted works and received charges for the same. The appellant here italicised. Made provisional assessment levying tax on hire charges under section 5-E of the Act. The respondent filed writ petition seeking declaration that the tax levied, exercising power under section 5-E of the Act on the hire charge collected during the period 1988-89, was illegal and unconstitutional. The appellant filed a counter-affidavit in the writ petition contending that the respondent was lending highly sophisticated and valuable imported machinery to the contractors engaged in the execution of the project work on specified hire charges; the machinery was given in the possession of the contractor and he was responsible for any loss or damage to it and in view of the terms and conditions contained in the agreement, there was transfer of property in goods for use and on the amounts collected by the respondent as charges for lending machinery attracted tax liability under section 5-E of the Act. 4. The High Court after scrutiny and close examination of the ....
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....The second view is situs of sale would be the place where the contract is concluded. The third view is that the place where the goods are sold or delivered would be the suits of sale. The fourth view is, that where the essential ingredients, which complete a sale, are found in majority would be the situs of sale. There would be no difficulty in finding out situs of sale where it has been provided by legal fiction by the appropriate Legislature. In the present case, we do not find Parliament has, by creating any fiction, fixed the location of sale in case of the transfer of right to use goods. We, therefore, have to look into the decisional law." "26. The next question that arises for consideration is, where is the taxable of the right to use any goods. Article 366 (29A)(d) empowers the State Legislature to enact law imposing sales tax on the transfer of the right to use goods. The various sub-clauses of clause (29A) of Article 366 permit the imposition of tax thus: sub-clause (a) on transfer of property in goods; sub-clause (b) on transfer of property in goods; sub-clause (c) on delivery of goods; sub-clause (d) on transfer of the right to use goods : sub-clause (e) on supp....
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....n other words, right to use arises only on the transfer of such a right and unless there is transfer of right, the right to use does not arise. Therefore, it is the transfer which is sine qua non for the right to use any goods. If the goods are available, the transfer of the right to use takes place when the contract in respect thereof is executed. As soon as the contract is executed, the right is vested in the lessee, Thus, the situs of taxable event of such a tax would be the transfer which legally transfers the right to use goods. In other words, if the goods are available irrespective of the fact where the goods are located and a written contract is entered into between the parties, the taxable event on such a deemed sale would be execution of the contract for the transfer of right to use goods. But in case of an oral or implied transfer of the right to use goods it may be effected by the delivery of the goods. 28. No authority of this court has been shown on behalf of respondents that there would be no completed transfer of right to use goods unless the goods are delivered. Thus, the delivery of goods cannot constitute a basis for levy of tax on the transfer of right t....
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....ry Finance Corpn. Ltd. v. State of Maharashtra. A "transfer of the right to use any goods" will be complete according to the law laid down by the majority in that case, on completion of the contract to transfer of the right to use the goods. The contention that the area telephone exchanges and other systems would remain under the control of DoT, is irrelevant to complete such a transfer. Even otherwise, after installation of the instrument and other appliances, once DoT connects the telephone line of the assigned number of the subscriber to the area exchange, access to other telephones is established. There cannot be denial of the fact that giving such an access would complete the transfer of the right to use the goods. However, reliance is placed on the decision of the High Court of Andhra Pradesh in Rashtriya Ispat Nigam Ltd. v. CTO which was affirmed by this Court in State of A.P. v. Rashtriya Ispat Nigam Ltd. It is unnecessary to deal with these cases in any detail : suffice it to say, in that case there was a finding of fact that the transaction did not involve transfer of the right to use the machinery in favour of contractors and that determined the issue. 27. ....
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....r : "72. In State of U.P. v. Union of India it was also held: (SCC p.258, para 26) Handing over of possession is not sine qua non of completing the transfer of the right to use any goods, as was held by a Constitution Bench of this Court in 20th Century Finance Corpn. Ltd. v. State of Maharashtra. Once DoT connects the telephone line of the assigned number of the subscriber to the area exchange, access to other telephones is established. There cannot be denial of the fact that giving such an access would complete the transfer of the right to use the goods. 73. With respect, the decision in 20th Century Finance Corpn. Ltd. v. State of Maharashtra cannot be cited as authority for the proposition that delivery of possession of the goods is not a necessary concomitant for completing a transaction of scale for the purpose of Article 366 (29-A(d) of the Constitution. In that decision the Court had to determine where the taxable event for the purpose of sales tax took place in the context of sub-clause (d) of Article 366(28-A). Some States had levied tax on the transfer of the right to use goods on the location of goods at the time of their use irrespective of the....
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.... right to use, that the goods are available and deliverable. If the goods, or what is claimed to be goods by the respondents are not deliverable at all by the service providers to the subscribers, the question of the right to use those goods, would not arise. 76. In State of A.P. v. Rashtriya Ispat Nigam Ltd. it was claimed by the Sales Tax Authorities that the transaction by which the owner of certain machinery had made them available to the contractors was a sale. The Court rejected the submission saying that: (SCC p. 315, para 4) "The transaction did not involve transfer of right to use the machinery in favour of contractors. ... the effective control of the machinery even while the machinery was in use of the contractor was that of the respondent Company: the contractor was not free to make use of the machinery for the works other than the project work of the respondent or...." 77. But in Aggarwal Bros. v. State of Haryana when the assessee had hired shuttering in favour of contractors to use it in the course of construction of buildings it was found that possession of the shuttering materials was transferred by the assessee to the customers for their use and....
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.... transferred the right to use the goods during the period for which it is to be transferred, the owner cannot again transfer the same rights to others. 40. The Apex Court in the case of Agarwal Brothers v. State of Haryana & Another reported in 1999 (9) SCC 182, has held as under :- In the aforesaid case, "the assessee's were hire shuttering to builders and contractors who use it in the course of construction of buildings. It is on the hire charges, sales tax was levied. Challenging the said imposition of tax, writ petition was filed before the Punjab and Haryana High Court. The argument was that the said imposition was unconstitutional. The High Court found as a matter of fact, the possession of the shuttering material was transferred by the assessee to their customers for use during the construction of buildings. The customers were in effective control of the shuttering during the periods it remained in their possession. Therefore, it held, the transactions fell within the amended definition of the word 'sale' as there was a transfer of the right to use the shuttering. Challenging the said finding before the Apex Court, it was contended having regard to the Entry 54....
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....assessee. Clause 11 provides that the licensee was granted full liberty to repair/replace the plant replace the plant and machinery, if necessary, for the proper running of the sugar mill and to carry out the civil construction work, wherever considered necessary. In terms of Clause 18 of the purported deed of licence, the licensee was required to execute a performance guarantee in favour of the owner to ensure performance on its part and the Company was required to assure the appellant that it would not in any manner put any hindrance to the running of the mill during the period of the licence and the Company would also ensure that none of its creditors as on date including its bankers, take any steps to hinder the working of the mill." In the background of these facts, the Apex Court held as under :- "A transfer of the right to use any goods for any purpose either for cash or deferred payment or other valuable consideration, would come within the purview of definition of sale. By reason of Clause 29-A of Article 366, the ratio in Gannon Dunkerley & Co. has been overcome, as title to the goods, although, may remain with the transferee, a transfer of right to use the goods wo....
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....sale of goods takes place, the State becomes entitled to impose tax on sale or purchase of goods. For construction of the words "sale of goods", now the Court is not necessarily required to fall upon the definition of sale of goods, as contained in the Sale of Goods Act 1930. It has to be governed by its enlarged definition under Clause (29-A) to Article 366 of the Constitution of India. Once an essential component of sale takes place, Sales tax would, indisputably, be payable. By reason of such an arrangement by the parties, the State is not creating a new taxable event nor imposing a new tax which was unknown in law." In the case of State of Orissa and Another v. Asiatic Gases Ltd., reported in (2007) 5 SCC 766, wherein the Apex Court held at para 6 as under :- "6. Secondly, it is not in dispute that under the contract in the present case it was open to the customer to buy the gas cylinder or to borrow it on loan from the assessee. For the first 14 days the loan was free from payment of any charges. However, thereafter a fixed amount was levied by the assessee as a charge for overretention. According to the impugned Judgment the said charge for overretention was in the....
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....ssor is entitled to recoup its capital investment (less the realisable value of the equipment at the time) and its expected finance charges (less an allowance to reflect the return of the capital) (para 32.057). In the case of hire-purchase agreement the periodical payments made by the hirer is made up of : (a) consideration for hire (b) payment on account of purchase. 51. Thus, reliance placed by the appellant(s) on the expression "splitting up" in K.L. Johar case is misconceived because the "splitting up" referred to in K.L. Johar case was, as stated above, in regard to valuation and not in regard to legislative competence. 54. There are different types of financial leases, namely, a tax-based financial lease, a leverage lease and an operating lease. In the present case, there is no adjudication of the matter. The appellant(s) approached the High Court directly without proper adjudication by the competent authority under the Finance Act, 1994. Even in the matter of allocation between the principal and finance/interest charges, adjudication under the Act was warranted which has not been done. One must also....
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....hat it relates to user of goods. It may be that the actual delivery of the goods is not necessary for effecting the transfer of the right to use the goods but the goods must be available at the time of transfer, must be deliverable and delivered at some stage. It is assumed, at the time of execution of any agreement to transfer the right to use the goods, that the goods are available and deliverable. If the goods, or what is claimed to be goods by the respondents are not deliverable at all by the service providers to the subscribers, the question of the right to use those goods would not arise. Providing access or telephone connection does not put the subscriber in possession of the electromagnetic waves any more than a toll collector puts a road or bridge into the possession of the toll payer by lifting a toll gate. Of course the toll payer will use the road or bridge in one sense. But the distinction from a sale of goods is that the user would be in possession of the things or goods delivered. The delivery may not be simultaneous with the transfer of the right to use. But the goods must be in existence and deliverable when the right is sought to be transferred. Whether goods are ....
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....; "Passive Infrastructure" means at any site, any infrastructure located at such site which is permitted by Law to be shared by the Parties, including but not limited to the tower, shelter, diesel generator sets, air conditioners and electrical and civil works : Clause (2) : Site Access (2.1) Provision of Passive Infrastructure 2.1.1 Indus shall provide Site Access Availability to the Sharing Operator in accordance with the terms and conditions of this Agreement. 2.1.2 Throughout the Term of this Agreement, the Sharing Operator shall be entitled to provide notice to Indus of those Sites in relation to which it wishes to be granted Site Access Availability (a "Service Order"). The process for issuing a Service Order shall be as specified in Schedule 1 (Site Access Availability). 2.1.3 Indus shall ensure that each Site is capable of accommodating Sharing Operator Equipment in accordance with the standard configuration set out in paragraph 1 of Schedule 1 (Site Access Availability). Any additional requirements shall be specified by the Sharing Operator in the Service Order. 2.1.4 In the event that the Service Orders rec....
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....repair, add or otherwise modify the Sharing Operator Equipment or any portion thereof and the frequencies over which such Sharing Operator Equipment operates. The Sharing Operator shall be provided access to the Sites in accordance with paragraph 2.9 of Schedule 2 (Operation and Maintenance Services) unless otherwise specified in the relevant Service Contract, for the purpose of carrying out such operation and maintenance activities and Indus shall provide to the Sharing Operator the necessary means of access for the purpose of ingress and egress from each Site. Provided, however, that only authorised employees of the Sharing Operator or its properly authorised sub-contractors shall be allowed such access to the Sites. 3.2 Standard of Operation and Maintenance Services : 3.2.1 Indus shall ensure that the Operation and Maintenance Services are provided : (i) In accordance with Good Industry Practice : (ii) In compliance with all Laws : and (iii) By an adequate number of suitable qualified, skilled and experienced Personnel. 3.2.2 Indus shall ensure that the O....
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....poses as Indus may in its discretion decide to support from time to time. 6. Charges 6.1 Payment of Charges Indus shall charge and invoice the Sharing Operator for the Charges in accordance with Schedule 3 (Charges). The Charges set out in Schedule (3) (Charges) shall be revised on an annual basis, commencing on the first anniversary of the Effective Date. Provided, however, that such annual revision of the Charges shall not affect any other provision of a Service Contract existing at the time of such annual revision. 6.2 Payment Terms 6.2.1 Subject to clause 6.4, all invoices submitted by Indus in accordance with the Schedule 3(charges) shall be paid by the Sharing Operator within 15 days of receipt. 6.2.2 All Charges, Taxes, costs and expenses due under this Agreement must be invoiced by Indus as part of the Charges within six (6) months of the date Indus is first entitled to invoice such sums. 6.3 Late Payment If either Party has....
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....e Resolution Procedure. 6.5 Other Costs The Parties agree that the Sharing Operator is not liable to pay any amount under this Agreement unless expressly stated in the Agreement. 10. Right to Advertise on Passive Infrastructure. 10.1 Third Party Advertisement Indus shall have the exclusive right to lease, licence or grant space on each Site or Passive Infrastructure on a Site to any third party for the purpose of placing hoardings, banners and other advertisements. Indus shall be solely responsible for complying with all Laws in relation to such lease, licence or grant 10.2 Impact on the Sharing Operator Indus shall use its best endeavours to ensure that the lease or licence of space on a Site or Passive Infrastructure on a Site for advertising does not adversely affect the connectivity, network or Active Infrastructure of the Sharing Operator. Indus shall promptly remove or relocate any advertisement from a Site or Passive Infr....
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....n a service area/circle on the first day of the following month. xxxxx xxxxx xxxxx 5.13 Infrastructure Provider will ensure power supply of : - 24/48 Volt DC Power supply. - Surge and lighting protection at the input of AC power supply, xxxxx xxxxx 5.16 Infrastructure Provider shall ensure proper access to Shelter/Room and Tower in terms of lighting, access ladders, 24 x 7. The third agreement is entered into between Bharat Sanchar Nigam Limted and Wireless TT Info Services Ltd., which is styled as Infrastructure Sharing Agreement, which is dated 6th of October 2008. The relevant clauses in this agreement are as follows : Scope of Services 1.0 ....
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....p; The SLA's shall be applicable for each of the Infrastructure elements, functions as well as for the complete system. 2.7 BSNL shall carry out maintenance, upgrade or replace the hardware/software as and when required within the allotted space during the contract period. 2.8 Any consequences due to delay in payment/penalties of power, fuel, other utilities bills and statutory payments in time, shall be to the Infrastructure Providers account. 2.9 The Infrastructure Provider shall ensure good housekeeping of site and BSNL or its authorized representative shall have 24 hours 365 days access to the site. 2.10 The Infrastructure Provider shall have necessary skilled manpower at the cluster level to administer the operation and maintenance. The organization chart detailing the fault monitoring arrangement clearly showing own employees and outsourced resources shall be made available to BSNL. 2.11 The Infrastructure Provider will construct/provide the tower for enabling BSNL to install Cellular and Microwave antenna of required size and quantity. The towers shall be prov....
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....Infrastructure Provider. (b) In case of an existing Site If it's an existing site of the Infrastructure Provider, it will be offered in 10 days. 5.0 Power plant (not applicable in case of outdoor BTS) IPL shall provide SMPS power plant with weather proof enclosure (IP-55) of appropriate capacity with spare modules. 6.0 Battery set (not applicable in case of outdoor BTS) IPL shall provide 2 sets of Maintenance - free Batteries of appropriate capacity with a power backup of 6-8 hours. 7.0 Power Requirement Ø IP shall be provide AC-Mains/DG Supply as per SLA. Ø The infrastructure Provider shall provide 2 nos. 50 Amps DC MCB for connecting the BTS along with the Power Plant. Ø Up to 4 nos. 16Amps MCBs for Radio equipments Ø AC power from SEB grid, with suitable connected load atACDB. Ø Power back up from a Diesel Generator of suitable capacity. Ø Neutral to Earth voltage should be less than 2 volts Ø....
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....o 18 : 3043 : 1987, All Earth pits should give an earth resistance less than 0.5 ohms, if required earth enhancement compound may be used to get the required earth resistance. 10.0 Lightening Protection Lightening arrester provider on the tower shall be connected to the earth pits using down-conductor. Down conductor should go directly to the earth-pit and it should also be connected to the tower body at the base of the tower. The down conductor should be 35 sq.mm. Cu cable, and to be routed through the tower leg away from the cable ladder. In areas which experience heavy lightning, active/specialized lightning protection based on advanced technologies need to be provided. The tower legs should be earthed with an earth ring. 11.0 Fire Alarm System The Fire Alarm system should have following features : Ø A digital temperature sensor with settable high temperature alarm independent of air conditioner alarms shall be provided. Ø Potential free contacts of the below mentioned alarms shall be wired to the alarm termination box through shields/armoured cable. Infrastructure Provider for ....
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.... bill the Customer on actual consumption basis as per schedule 3. ❖ Infrastructure provider will keep the passive Telecom Infrastructure in operating condition. ❖ Infrastructure provider will get the infrastructure serviced through periodic routine maintenance. ❖ On report of fault for any of passive equipment and infrastructure, infrastructure provider technical/engineer will visit the site within agreed timelines, attend to the problem and set right. ❖ Infrastructure provider will also ensure manufacturer's support for passive Telecom infrastructure maintenance, through Annual Maintenance Contracts. ❖ Infrastructure provider will provide for extension of all the infrastructure alarms on a alarm panel enabling customer to extend these alarms to their system. 14.0 Electricity Board supply (EB supply) Infrastructure provider shall be responsible for providing the electricity board connection of the required ra....
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....ent remains same as listed above, however based on the site conditions and availability of resources, the site specific requirement can be modified on a case by case basis. 17.0 General Points 17.1 The Infrastructure Provider shall ensure that equipment installation are as per manufactures stipulated guidelines and all the teams working at the site follow safe installation practices. The infrastructure provider would be responsible for safety of the men, material, public/private property and people. 17.2 The Infrastructure Provider is responsible for getting all statutory clearances like municipal approval, pollution control board clearances. electrical inspectorate clearances etc. and all related payments. 17.3 Infrastructure provider shall be responsible for complaince of all labour enactments, such as provident fund, minimum wages act, workmen compensation act, contract labor act, gratuity and ESI rules of workmen and their payment to workers and respective government agencies. 18.0 Documentation Infrastructure Provider shall submit one set of following documents to Customer along with site RFI declaration/hand over....
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....rt to BSNL in format to be mutually agreed between the parties. 9. Shall ensure that all the items/equipments, which are under warranty, are handled/attended by authorized dealers only. The responsibility of ensuring the availability of the spare parts/items and that the above are attended by the authorized dealers shall be that of Infrastructure provider. 10. Shall provide Security Guard at GBT site (as per Master Agreement). The Security Guard shall allow access to the authorized representative of BSNL for carrying out the Maintenance Services of the installed equipments. BSNL shall provide the list of such authorized representatives. 11. In the event of any defect/failure of passive infrastructure at any of the sites, BSNL shall report the same to the nominated representative of Infrastructure provider through SMS, followed by an email It is agreed between the parties that Infrastructure Provider shall attend all critical alarms which can lead to outage, within a maximum time 2.5 hrs plus traveling time of maximum 2 hrs for remote sites between 6 AM and 10 PM and within 3.5 hrs plus trav....
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.... Infrastructure Provider shall be responsible for security, maintenance, operation of the infrastructure assets at sites (including replacements of DGs or air conditioners on their end of life). 2. Infrastructure Provider shall ensure that the Identified Assets (Room/Shelter, Air Conditioner, DG, Electrical Wiring, Commercial Power) are maintained in good working condition. 3. Infrastructure Provider shall be the single point of contact with the site landlord, and all other local authorities (viz.. Municipal, Electricity Board etc.,) However, BSNL shall be responsible for obtaining SACFA clearance for Frequency use only. 4. Maintenance of PIU/DG/AC/Shelter by the Infrastructure Provider shall be conducted by taking the concurrence from the officer of at least J AG level of BSNL. 5. In case of failure in the site, the Infrastructure Provider shall intimate the nominated person of BSNL thru SMS. In case failure extends beyond 30 minutes, the failure is escalated to the CTO of the Infrastructure ....
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....ing and transmitting the signals. As indicated supra the set of instruments dealing with the above process is termed as 'active infrastructure' belonging to the mobile operators. For functioning of the active infrastructure maintenance of a particular temperature, humidity, safety and also positioning of the Radio/MW antennae at a particular height is required. These requirements are achieved by using the passive infrastructure, i.e., tower and other equipments. The mobile operators are permitted to mount their Radio/MW antennae at desired heights and direction coupled with the use of equipments providing other technical requirements. By using this passive infrastructure, the mobile operators communicate the mobile signals. This right of use is acquired legally by means of contract called service contract read with MSA. 51. What the assessee provides in the passive infrastructure to the mobile operator is the power connection to the mobile operator. The power rating of the Sharing Operator's equipment of a Site will be determined on the basis of measurement of the actual consumption by the installed equipment on a full load basis. This measurement will be conducted wh....
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....infrastructure. Further it is made clear that such ingress and egress is not available to all the employees of the mobile operator. It is available only to authorised employees of the Sharing Operator or its properly authorised sub contractors. Having conferred this benefit on the mobile operator, it is categorically declared in the contract that the right, title and interest in and to the passive infrastructure including any enhancements carried out by the assessee shall vest with the assessee. Therefore, the intention of the parties is clear. The intention was not to transfer at any point of time, any right, title or interest in the infrastructure to the mobile operator under the terms of the contract. It is also made clear that, while the assessee is responsible for operating the passive infrastructure by providing access to the mobile operator, the assessee has no corresponding responsibility of maintaining the active infrastructure of the mobile operator. It is categorically stated that the Sharing Operator shall be responsible for the operation and maintenance of all Sharing Operator equipment. In order to enable the Sharing Operator to maintain his equipment, the Sharing Ope....
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.....e., earth resistance value of less than 2 ohms, internal earth distribution bar of electrolytic grade copper with 24 holes of 8mm diameter to be provided inside the shelter, direct connection by use a 35 square mm copper/galvanized iron/aluminum cable and the connected earth pit should be a copper plate earth pit. External earth distribution bar, in accordance with above, shall be provided near to the wave guide entry plate outside the shelter for grounding of the RF cables and equi-potential bonding of all earth pits should be inter-connected at ground level. External and internal cable trays shall be interconnected at joints and earthed at ends. In addition to the aforesaid services the assessee is also liable to provide periodic stability checks of the tower; timely payment of electricity bills, as applicable; provision of fuel and filling the same in DG set at the Site as required, maintenance of DG set, security services, provision and maintenance of air conditioning as set out below, i.e., (a) Room temperature to be maintained at 35 +/- 5 degrees Centigrade measured on top of the BTS; and (b) Relative humidity at the Site....
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....e cooling Material. (25) All IBS related infra-RF cables. Distributed Antennae system repeaters, amplifiers, splitters, etc. (26) All Machinery equipment, parts, spares, components, accessories, consumables & other items for use in telecommunication network or in generation or distribution of electricity. (27) High speed diesel & Lubricant oil for use in DG set. (28) Acoustic Material. (29) All types of Transmission cables. (30) All other goods for use in the telecommunication network/generation or distribution of electricity or any other form of power. (31) Spare parts, accessories and components of goods mentioned above. 58. The entire infrastructure/instruments/appliances and exchange are in the physical control and possession of the assessee/service provider at all times and there is neither any physical transfer of such goods nor any transfer of right to use such equipment or apparatus. 59. The assessing authority seems to be under the impression that under the terms of....
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....its mobile operators at different heights. As long as there is a contract and he wants to honour the contract certainly during the period of contract he cannot make available the same facility to another mobile operator. There is nothing in law which prevents him from putting an end to the contract and providing access to another mobile operator. It is not a case where he has to go to a Court of law to recover possession of a property which is delivered to the mobile operator. Therefore, none of the tests which are prescribed to constitute a sale of goods or the extended meaning of the sale of goods inasmuch as deemed sale is present in the instant case. 60. In this context it is useful to notice the nature of right the mobile operator, in substance, gets under the contract. It is in the nature of a licence as defined under Section 52 of the Easements Act, 1882 which reads as under :- 52. "Licence defined". - When one person grants to another or to a definite number of others persons, a right to do or continue to do, in or upon the immovable property of the grantor, something which would, in the absence of such right, be unlawful, and such right does not amount to an eas....
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....inues to be in the owner of the property but the licencee is permitted to make use of the premises for the particular period. But for the permission his occupation would be unlawful, and does not create in his favour any estate or interest in the property. 64. It is well settled that, whether the transaction amounts to transfer of right or not cannot be determined with reference to a particular word or clause in the agreement. The agreement has to be read as a whole to determine the nature of the transfer. From a close reading of all the clauses in the agreement it appears to us that under the terms of the contract there is no transfer of right to use the passive infrastructure conferred on the sharing operator/mobile operator. What is permitted under the contract is, a permission in the nature of a licence to have access to the passive infrastructure and permission to keep the equipments of the mobile operator in the pre-fabricated shelter with permission to have ingress and egress only to the authorised representatives of the mobile operator. It is because an owner of a property has a bundle of rights, namely right to possess, right to use and enjoy, right to usufruct, ri....