TaxTMI 
TaxTMI 
2023 (1) TMI 1509
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....ion petitions were admitted on following question of law:- "(i) Whether the Tax Board was justified in law in holding that Artificially Created Light Energy (ACLE) is not a "Good" and hence is no taxable under RVAT Act? (ii) Whether the Tax Board was justified in law in holding that sale of Data Transmission through OFC using ACLE is not a "Deemed Sale" under RVAT Act?" 2. It is the case of the revenue-petitioner that light carrier/ACLE, used by telecommunication companies like the present assessee-respondent, is a movable property capable of being guided from point to point, having all the stipulated attributes of goods like abstraction, possession, transfer, use, delivery, etc., and works very much like 'electric ener....
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....of A.P. and Ors. vs. National Thermal Power Corporation Ltd. and Ors.: (2022) 5 SCC 203 to submit that the Apex Court has declared 'electricity' as 'goods', leviable to VAT. Learned counsel submitted that, in simple terms, electrical energy is a flow of electrons whereas ACLE is flow of photons and hence it is a good, just like electricity. It was argued that looking to the pith and substance of contract in question, it is unambiguous that the said transaction of data transmission using ACLE and OFC technology falls under Entry 54, Lisy -II of Seventh Schedule of the Constitution of India, which is the exclusive jurisdiction of the State. It was further argued that the intent of the State Legislature was to levy VAT @ 12.5% on such composit....
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....Hon'ble Apex Court judgment of BSNL (supra) and Karnataka High Court judgment of Bharti Airtel Ltd (supra). It was further submitted that the contentions of the revenue-petitioner in the instant case are similar to contentions raised by State of Karnataka in the review petition filed against the judgment of BSNL (supra). However, the Hon'ble Supreme Court, vide order dated 01.12.2009 in Review Petition (Civil) No. 33523/2007, dismissed the review against BSNL (supra) both on merits and on account of delay. 7.1 Heard the arguments advanced by both the sides, scanned the record and considered the judgments cited at Bar. 8. In the case in hand, the assessing officer, as per his own wisdom, has declared that ACLE are very much like electr....
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.... the contract between the subscriber and the service provider is a composite contract or indivisible contract or a composite contract which is indivisible? 5. Whether the issue involved in this case is covered by the judgment of the Apex Court in B.S.N.L. case? 6. Whether these Writ Appeals/Writ Petitions are not maintainable on the ground of availability of alternative remedy? 111. A perusal of the aforesaid issues makes it clear that it was not the mobile connection alone which was under consideration by the Apex Court. The question for consideration was, (a) what are goods in telecommunication?, (b) is there any transfer of any right to use such goods? (c) what is the nature of transa....
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....ssion of toll payer by lifting the toll gate. Therefore the Supreme Court has ultimately held that whether goods are corporeal or incorporeal, tangible or intangible, they must be deliverable. To the extent, the decision of the State of U.P. held otherwise, it was in their humble opinion, erroneous. They also held a telephone service is nothing but a service. There is no sale element apart from the obvious one relating to the hand set, if any. Therefore, they summed up their findings by saying that goods do not include electromagnetic waves or radio frequencies for the purpose of Article 366(29-A)(d). The goods in telecommunication, are limited to the hand sets supplied by the service provider. 149... All the writ appeals ....