Allahabad High Court
M/S Schlumberger Measurement And ... vs State Of U.P. & Others on 20 May, 2014
Bench: Tarun Agarwala, Bachchoo Lal
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Court No. - 33 Case :- WRIT TAX No. - 1399 of 2009 Petitioner :- M/S Schlumberger Measurement And Systems India Ltd Respondent :- State Of U.P. & Others Counsel for Petitioner :- N.C. Gupta Counsel for Respondent :- C.S.C. Hon'ble Tarun Agarwala,J.
Hon'ble Bachchoo Lal,J.
We have heard Sri N.C. Gupta, the learned counsel for the petitioners and Sri C.B. Tripathi, the special counsel for the State.
The petitioner is a company registered under the Indian Companies Act and is dealing in SIM cards and smart cards by importing and selling the same in India. It is alleged that the petitioner company has various branches in various parts of India and, from time to time, the petitioner is transferring the SIM cards as well as smart cards to its various branches by way of stock transfer. This is being done after due verification and issuance of Form-F under Section 6-A of the Central Sales Tax Act. In assessment proceedings, the transfer of stocks has been accepted and no tax has been levied. The assessing officer, subsequenty, issued a notice dated 28th March, 2009 initiating reassessment proceedings under Section 21 (2) of the U.P. Trade Tax Act for the assessment year 2002-03. The petitioner being aggrieved by the issuance of the said notice filed the present writ petition which was entertained and an interim order dated 29th May, 2009 was passed staying further proceedings with the embargo that the assessment proceedings may be completed but the order would not be served upon the petitioner.
Lengthy arguments were raised with regard to the fact that there was no fresh material existing by which the assessing authority had any reason to believe to reopen the assessment proceedings and that it was only a change of opinion which could not be allowed and consequently the notice issued under Section 21 (2) of the U.P. Trade Tax Act should be quashed.
Having heard the learned counsel for the parties, we are of the opinion that it is not necessary to go into this question as to whether there was material before the assessing officer which was sufficient for him to believe that it was a case of under-assessment and, therefore, had sufficient reasons to believe for reopening of the assessment and that it was not a case of change of opinion, in view of the decision of the Supreme Court IDEA Mobile Communication Ltd. Vs. Commissioner of Central Excise & Customers, Cochin 2011 (43) VST 1 SC wherein the Supreme Court held that the SIM card has no intrinsic sale value and it is supplied to the customers for providing telephone services to the customers and, therefore, there could be no assessment of the sales tax on the sale of the SIM card supplied by the company to the customers. Following the said decision, the Andhra Pradesh High Court in State of Andhra Pradesh Vs. Bharat Sanchar Nigam Ltd. 2012 NTN (Vol.48) 310 held that the value of the SIM card forms part of the activation charges and consequently service tax alone could be levied for such services, and not sales tax, and consequently the assessing authorities as well as the appellate and revisional authorities had exceeded their jurisdiction in levying tax on pre-paid and post-paid SIM cards.
In the light of the aforesaid, since no trade tax in the instant case is leviable on supply of SIM cards, the question of re-opening the assessment proceedings does not arise. Consequently, on this short ground, the impugned notice is quashed. The writ petition is allowed.
Order Date :- 20.5.2014 MT** (Bachchoo Lal,J.) (Tarun Agrawal,J.)