M/S BHARAT SANCHAR NIGAM LTD. LKO. THROUGH AUTHORISED SIGNATOR Vs. COMMISSIONER OF COMMERCIAL TAX U.P. GOMTI NAGAR LKO. AND ANR.

JUDGEMENT

(1.) These Trade Tax Revisions have been filed by Bharat Sanchar Nigam Ltd., which is a company incorporated under the Indian Companies Act, 1956 and has been authorised by the Government of India to provide telecommunication facilities to the consumers under the Telegraph Act, 1885. Since common question of law is involved in these revisions, therefore, with the consent of both the parties, both the revisions are being decided by this common judgement.

(2.) For Assessment Years 2008-2009 and 2009-10, the Assessing Authority vide separate orders dated 31.10.2017, held the company liable to tax under U.P. Value Added Tax Act, 2008 on entire purchases of modem, GSM phones, data cards, scrap etc. and to entry tax under the provisions of U.P. Tax on Entry of Goods into Local Areas Act, 2007 on telecom goods, D.G. set, air conditioner, cable etc. Aggrieved by these orders, the revisionist preferred two separate First Appeals. It also applied for stay of the disputed tax liability during pendency of the appeal. The First Appellate Authority granted stay to the extent of 60% by separate orders dated 8.2.2018. The applicant being aggrieved by these orders, filed Second Appeal before the Tribunal, which have been decided by common order dated 22.2.2018, whereby, the orders passed by the First Appellate Authority was modified to the extent that the applicant is now required to deposit only 25% of the disputed tax liability. Aggrieved by the said order, the present revisions have been filed.

(3.) It is contended by learned counsel for the revisionist that the impugned order passed by the Tribunal is virtually a non-speaking order. The Tribunal had not applied its mind to the prima facie case of the revisionist and it erred in not granting complete stay. It is pointed out that the demand raised against the revisionist has no legs to stand, in view of the decision of the Apex Court in the case of Bharat Sanchar Nigam Ltd. v. Union of India reported in (2006) 3 SCC 1 as well as the decision of the Apex Court in the case of Idea Mobile Communication v. CCE and Customs (2011) 12 SCC 608 , wherein it was held that the rental of the basic telecom as well as supply of SIM card is not liable to be taxed. Learned counsel for the revisionist has also placed reliance on Division Bench judgement of this Court in the case of I.T.C. Ltd. v. Commissioner (Appeals), Custom and Central Excise, Meerut-I 2005 (184) E.L.T. 347 (ALL.) . It is thus, contended that the impugned order of the Tribunal suffers from manifest error of law.