TaxTMI 
TaxTMI 
2024 (1) TMI 1530
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....ner and Mr. K. Bhaskar Reddy, learned Government Pleader lor Commercia-l Tax appearing for the respondents. 2. The instant Writ Petition has been filed seeking the following reliefs: "(a) declare the levy of sales tax on the telecommunication services provided by the Petitioner as ultra vires the provisions of the APGST Act, 1957 and the Constitution of India by the issuance of a writ of Mandamus or a writ in the nature of Mandamus or any other appropriate writ direction or order; and consequently (b) declare the Reassessment Order G.I. No. 2972 /2000- 2001 (APGST) dated March 10, 2004 issued by the Respondent No.2 herein as non-est and invalid in law and wholly without Jurisdiction; and (c) restrain the Respon....
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....he case of M/s. Idea Cellular Ltd. Vs. The Asstt. Commissioner of Commercial Taxes, LTU, Indore [2017 (99) VST 24 (MP)], in which, the said High Courts dealt with the question of law raised in the present Writ Petition. 5. Referring to the decision in the case of Bharat Sanchar Nigam Ltd. (1 supra), learned counsel for the petitioner had submitted that the Hon'ble Supreme Court had remanded the matter back to the Sales Tax Authorities so far as determination of the issue relating to SIM cards being amendable to Sales Tax or not. The Hon'ble Supreme Court in the very same decision, in paragraph No.85, in categorical terms, held that goods in any case would not include electromagnetic waves or radio frequencies and that goods in te....
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.... service providers. This fact gets fortified from the subsequent decision of the Hon'b1e Supreme Court in the case of the petitioners themselves in the case of Idea Mobile Communication Ltd. (2 supra), wherein in paragraph Nos. 17 to 19, it is held as under: "17. The High Court has given cogent reasons for coming to the conclusion that service tax is payable inasmuch as SIM Card has no intrinsic sale value and it is supplied to the customers for providing mobile service to them. It should also be noted at this stage that after the remand of the matter by the Supreme Court to the Sales Tax authorities the assessing authority under the Sales Tax Act dropped the proceedings after conceding the position that SIM Card has no intrins....
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....e entire collection as processing charges for activating cellular phone and paying the service tax on the activation. The appellant also accepts the position that activation is a taxable service. The position in law is therefore clear that the amount received by the cellular telephone company from its subscribers towards SIM Card will form part of the taxable value for levy of service tax, for the SIM Cards are never sold as goods independent from services provided. They are considered part and parcel of the services provided and the dominant position of the transaction is to provide services and not to sell the material i.e. SIM Cards which on its own but without the service would hardly have any value at all. Thus, it is established from ....
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.... the A.P. VAT Act, 2005- For ready reference, paras 62.2 and 62.3 are reproduced hereunder:- "62.2 SIM Cards, recharge coupon vouchers, mobile telephone rentals on post paid connections, value added service such as ring tones, music down loads, wall papers etc., and proceeds received on sharing of infrastructure cannot be subjected to tax either under Section 4(1) or Section 4(8) of the Act. 62.3. Telephone instruments, mobile handsets, modems and Caller ID instruments' are "goods" both under Article 366(12]r of the Constitution of India and Section 2(16) of the Act". 9. The a-foresaid decision of the Andhra Pradesh High Court was subjected to challenge before the Hon'ble Supreme Court in the case of Bharat Sanchar ....