TaxTMI 
TaxTMI 
2010 (9) TMI 990
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....an be broadly classified into three categories-audio data, video data and textual data. Whatever the type of data be, data of all kinds are basically lifeless and, therefore, lack spontaneous movement of its own. To cause transfer/movement of such data from one place to another, some specific carrier (energy) is indispensably required. Without such carrier, the data cannot even be imagined to move an inch forward, let alone at the speed of light. According to the assessing officer, such data carrier energy is the artificially created light energy (ACLE) which is acting as the sole driving force behind every type of data transfer in telecommunications. ACLE is possessable in the same sense as the electrical energy, as the customers can use it any time they want during the agreement period to transfer any quantum of his data to any destination, without any hindrance/restrictions from the assessee. This is despite the fact that the custody of the network as a whole, including the energy, rests with the assessee. The light carrier/ACLE works very much like "electrical energy" which has been held as "goods" by the honourable Supreme Court in the case of Commissioner of Sales Tax v. Madh....
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....interim order of stay subject to the condition assessee depositing Rs. 550 crores and he has listed the matter for final hearing on September 14, 2010. Assailing the said order it is contended that, when the impugned order passed by the assessing officer is contrary to the law declared by the apex court and when the stand of the assessee was accepted in the original proceedings, the learned single judge was not justified in passing an interim order and directing the assessee to pay Rs. 550 crores. The order does not disclose any reasons for such conditional order and, therefore, it is submitted the condition imposing depositing of Rs. 550 crores is liable to be set aside. Per contra, the learned counsel appearing for the State submitted that, though the order does not give reasons for such direction, in appeal this court can consider the material on record and find out whether in the facts of this case, the said order is justified. He further contended that the writ petition itself is not maintainable as the assessee has an alternate remedy by way of an appeal. He also relied on a judgment of the apex court which set aside the order passed by a Division Bench of this court and c....
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....#39;goods' element in telecommunication were the electromagnetic waves by which data generated by the subscriber was transmitted to the desired destination. The inspiration for the argument has been derived from the provisions of the Indian Telegraph Act, 1885 which defines telegraph as meaning: '3. (1AA) "telegraph" means any appliance, instrument, material or apparatus used or capable of use for transmission or reception of signs, signals, writing, images and sounds or intelligence of any nature by wire, visual or other electro-magnetic emissions, radio waves or Hertzian waves, galvanic, electric or magnetic means; Explanation.-"Radio waves" or "Hertzian waves" means electro-magnetic waves of frequencies lower than 3,000 giga-cycles per second propagated in space without artificial guide'. 59. Section 4 of the 1885 Act gives exclusive privilege in respect of telecommunication and the power to grant licences to the Central Government. Pursuant to such power, licences have been granted to service providers. According to the service providers in terms of their licence no further transfer of the rights to use the telegraph could be effected by them. Therefore, wh....
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....able or deliverable to the subscribers. 63. The second reason is more basic. A subscriber to a telephone service could not reasonably be taken to have intended to purchase or obtain any right to use electromagnetic waves or radio frequencies when a telephone connection is given. Nor does the subscriber intend to use any portion of the wiring, the cable, the satellite, the telephone exchange, etc. At the most the concept of the sale in a subscriber's mind would be limited to the handset that may have been purchased for the purposes of getting a telephone connection. As far as the subscriber is concerned, no right to the use of any other goods, incorporeal or corporeal, is given to him or her with the telephone connection. 64. We cannot anticipate what may be achieved by scientific and technological advances in future. No one has argued that at present electromagnetic waves are abstractable or are capable of delivery. It would, therefore, appear that an electromagnetic wave (or radio frequency as contended by one of the counsel for the respondents), does not fulfil the parameters applied by the Supreme Court in Tata Consultancy See [2001] 122 STC 198 (SC). for determining w....
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....ex court has held that, in telecommunication what is transmitted is the message by means of the telegraph. No part of the telegraph itself is transferable or deliverable to the subscribers. As far as the subscriber is concerned, no right to the use of any other goods, incorporeal or corporeal, is given to him or her with the telephone connection. An electromagnetic wave or radio frequency does not fulfil the parameters applied by the Supreme Court in Tata Consultancy See [2001] 122 STC 198 (SC).for determining whether they are goods, right to use of which would be a sale for the purpose of article 366(29A)(d). Therefore, they held that the electromagnetic waves are not "goods" within the meaning of the word either in article 366(12) or in the State legislations. There is no sales element. Finally, they concluded that, goods do not include electromagnetic waves or radio frequencies. The goods in telecommunication are limited to the handsets supplied by the service provider. Therefore, we understand the aforesaid judgment as laying down the law to the effect goods do not include electromagnetic waves or radio frequencies for the purpose of article 366(29A)(d). The goods in telecom....