TaxTMI 
TaxTMI 
2016 (11) TMI 670
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....erred as "the TNVAT Act") and the Central Sales Tax Act, 1956 (hereinafter referred as "the CST Act"). 4. Though elaborate factual details have been set out in the affidavit in support of these Writ Petitions and submitted during the course of argument by the learned counsel for the petitioner and after hearing the matter elaborately, this Court finds the dispute in these Writ Petitions lies in a very narrow campus. 5. Though the Assessment orders seem to be very elaborate and would appear that it is a speaking order, on a closer reading of the same, it reveals that the Assessing Officer has merely extracted the objections given by the petitioner, and without assigning any reasons for rejecting the same, in one paragraph consisting about 5 to 8 lines, passed the impugned orders. 6. To decide the controversy in issue, it would be relevant to note that for all the four Assessment years common issues have been pointed out by the respondent, while issuing the pre-revision notices, dated 06.02.2007 and 03.02.2009. 7. The issues can be broadly classified into three categories, viz., the first category is termed by the petitioner as a "Service Income", the se....
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....Income Percentage on total demand 11 Miscellaneous service income One time processing fee, SMS one time enrollment fee expired talk time - 12 Lease Charges Charges subscriber for dedicated line to a - Total income from Telecommunication Services 82.80 Income from sale of assets & other miscellaneous income 1 Rent from building Rent received from others who shared office premises with Aircel 0.14 2 Interest of deposits Interest received from the bankers for the short term deposits 14.31 3 Sale of Assets Sale of video conferencing equipments & Plant and Machinery 0.26 4 Sale of scraps Sale of discarded materials, wooden scraps & Newspapers - 5 Financial Charges from agent Finance charges recovered from agent on account of delayed receipt of receivables/outstanding - 6 Recovery from employees Received from resigned employees on account of notice period, as per term....
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.... It includes charges for the bills to the subscribers such as late fee, itemised billing, number changes, dehotlining charges & reactivation charges 0.06 Sl. No. Income from Tele- cummunication Services Nature of Income Percentage on total demand 11 Miscellaneous service income One time processing fee, SMS one time enrollment fee expired talk time - 12 Lease Charges Charges subscriber for dedicated line to a - Total income from Telecommunication Services 94.45 Income from sale of assets & other miscellaneous income 1 Rent from building Rent received from others who shared office premises with Aircel 0.02 2 Interest of deposits Interest received from the bankers for the short term deposits 3.75 3 Sale of Assets Sale of video conferencing equipments & Plant and Machinery 0.29 4 Sale of scraps Sale of discarded materials, wooden scraps & Newspapers ....
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....n selected by a subscribers in the net work. 2.58 9 Easy Deal Processing Fee On postpaid connection, service is provided by way of recharge. Processing fee is collected towards maintaining record of utilization of Telephone Service 0.48 10 Residual Income It includes charges for the bills to the subscribers such as late fee, itemised billing, number changes, dehotlining charges & reactivation charges - Sl. No. Income from Tele- cummunication Services Nature of Income Percentage on total demand 11 Miscellaneous service income One time processing fee, SMS one time enrollment fee expired talk time - 12 Lease Charges Charges subscriber for dedicated line to a - Total income from Telecommunication Services 97.58 Income from sale of assets & other miscellaneous income 1 Rent from building Rent received from others who shared office premises with Aircel - 2 Interest of deposit....
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....ed by other Mobile Phone operators - 7 Income from Bandwidth These are charges collected for browsing on cellphone. - 8 Plan Enrollment fee These are charges collected for maintaining details of tariff plan selected by a subscribers in the net work. 0.08 9 Easy Deal Processing Fee On postpaid connection, service is provided by way of recharge. Processing fee is collected towards maintaining record of utilization of Telephone Service 2.29 10 Residual Income It includes charges for the bills to the subscribers such as late fee, itemised billing, number changes, dehotlining charges & reactivation charges - Sl. No. Income from Tele- cummunication Services Nature of Income Percentage on total demand 11 Miscellaneous service income One time processing fee, SMS one time enrollment fee expired talk time - 12 Lease Charges Charges subscriber for dedicated line to a 0.30 Total income from Telecommunication Se....
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....eads in the first column, it cannot be disputed that the said finding recorded by the Assessing Officer is wholly erroneous in the light of the decision of the Hon'ble Supreme Court in the case of BSNL Vs. Union of India reported in 145 STC 1991, which has held that the decision in the case of Escotel, the Court erred in rendering such a finding. At this juncture, it would be relevant to quot a paragraph No.87 of the decision of the Hon'ble Supreme Court:- It is not possible for this Court to opine finally on the issue. What a SIM card represents is ultimately a question of fact as has been correctly submitted by the States. In determining the issue, however the Assessing Authorities will have to keep in mind the following principles: If the SIM Card is not sold by the assessee to the subscribers but is merely part of the services rendered by the service providers, then a SIM card cannot be charged separately to sales tax. It would depend ultimately upon the intention of the parties. If the parties intended that the SIM card would be a separate object of sale, it would be open to the Sales Tax Authorities to levy sales tax thereon. There is ....
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....el for the petitioner in the objections given by the petitioner, the petitioner has stated that no sales tax can be charged on the value of SIM Card and in the petitioner's case since the SIM is merely incidental to the service, the petitioner has also given the details of the purchases effected by their vendors viz., M/s.Gemplus India P Ltd., and has also given the cost incurred by them and other details. This aspect of the matter, though was verbatim extracted by the Assessing Officer while completing the Assessment, erroneously stated that there are no records available. Even assuming if there are no records, nothing prevented the Assessing Officer to direct the petitioner to produce necessary records. Therefore, the Assessment on said head, calls for interference. 12. Accordingly, these Writ Petitions are partly allowed on the following terms: (i) The findings with regard to the classification under "Service Income" (which is classified by the petitioner) which are Airtime charges, Recurring Charges, Connection / Activation Charges, Public Switch Telephone Network (PSTN), Value Added Services, Inter Connect charges, Income from Bandwidth, Plan Enrolment fee, Eas....