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3. All the States are requested to take necessary action as above.

Sd/-

(Mahendra Nath) Under Secretary to the Government of India"

(6) AS TO RULINGS CITED AT THE BAR AS TO STBs BEING GOODS OR NOT:

(i) On behalf of the Assessees, BHARAT SANCHAR NIGAM LIMITED vs. UNION OF INDIA7 was cited to contend that the electromagnetic waves are not goods and therefore, SIM cards employed in mobile phone instruments are not goods within the meaning of Article 366(29A). The Apex Court at paragraph 87 observed "what a SIM card represents is ultimately a question of fact.." Therefore, matter was remitted to the authorities (2006) 3 SCC 1

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STRP No.19/2024 C/W STRP NOS.37/2023, 10/2024, 15/2023, 31/2019 service provider. The Tribunal has set aside the assessment order under the UP VAT Act, 2008 (hereinafter referred to as the 'Act') on the reasoning that the assessee was only a service provider.

6. Learned Standing Counsel has contended that there was some element of sale of goods namely, set top box in the value Rs.1,200/- received by the assessee from each subscriber. The argument so advanced, even if found to be factually correct, to any extent, may not itself lead to an assessment of tax liability under the Act, in absence of any enabling provision being first shown to exist on the basis of such calculation or bifurcation or apportionment of the total value may have been made." The decision does not mention any specific provision of law nor does it refer to Article 366(29A) of the Constitution, either. This decision is bereft of any precedential value. Much is not necessary to specify.

(Explanations not being relevant, are not reproduced). (2) The above definition is coined by the State Legislature in the light of 46th Amendment to the Constitution of India whereby, clause (29A) came to be introduced to the definition clause enacted in Article 366. This Amendment expands the concept of sale and thereby, enlarges the power of State Legislatures to tax the transactions simulating sales but not conforming to the conventional meaning of sale under the Sale of Goods Act, 1930. Clause (29A)(d) being relevant, is reproduced below:

"53.5 In the case of Article 366(29A)(d) the goods are not required to be left with the transferee. All that is required is that there is a transfer of the right to use goods. In such a case taxable event occurs regardless of when or whether the goods are delivered for use. What is required is that the goods should be in existence so that they may be used.

53.6 The levy of tax under Article 366(29A)(d) is not on the use of goods. It is on the transfer of the right to use goods which accrues only on account of the transfer of the right.