Allowed

Tata Sky Limited a company registered under the provisions v. State of Andhra Pradesh, rep by its Principal Secretary

Telangana HC9 Aug 2023WP/2079/2008

Case brief

AI extract

What is this about?

The Telangana High Court allowed a writ petition challenging a VAT demand notice and assessment order regarding telecom recharge vouchers. Relying on the State of Andhra Pradesh vs. BSNL precedent which held such services tax-exempt, the court set aside the demand notice, assessment, and recovery proceedings, directing an immediate refund of deposits made.

What did the court decide?

The demand notice dated 16.11.2007 and the assessment order were set aside/quashed. The respondents were directed to refund the deposits made by the petitioner immediately.

Tata Sky Limited a company registered… — Constitutional and Fundamental Rights | Telangana HC (2023)

¶1

[^3386l

¶2

HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD (Special Original Jurisdiction)

¶3

WEDNESDAY, THE NINTH DAY OF AUGUST TWO THOUSAND AND TWENTY THREE

¶4

PRESENT

¶5

THE HONOURABLE SRI JUSTICE P.SAM KOSHY AND

¶6

THE HONOURABLE SRI JUSTICE LAXMI NARAYANA ALISHETTY

¶7

WRIT PETITION NO: 2079 OF 2008

¶8

Between:

¶9

IgLq^{SfyLimited A company registered under the provisions, of ComapaniesAct} 1956., having its registered office at 3rd floor, Bombay dyeing A.O. Buidling Pan*rang Budhakar marg, Worti, Mumbai-40O O2S rep by^-ctriei Finiance Office, Mr] Atul Bansal.

¶10

.....PETITIONER

¶11

AND

¶12

State of Andhra Pradesh, rep by its Principal Secretary, Secretariat Buildings, Hyderabad.

¶13

Commissioner of Commercial Taxes, Hyderabad.

¶14

Additional Commissioner/Jt Commissioner, Commercial Taxes, panjagufta, Hyderabad.

¶15

Peputy Commissioner of Commercial Taxes, Appeals, panjagutta, Hyderabad.

¶16

Commercial Taxes Officer, Marredpally, 6th Floor,^pavani prestige, Ameerpet, Hyderabad.

¶17

Union of lndia rep by its Secretary, Finance, New Delhi.

¶18

.....RESPONDENTS

¶19

Petition Under Article 226 of the Constitution of lndia praying that in the circumstances stated in the affidavit filed therewith, the High Court may be pleased to issue a writ, order or direction more particularly one in the nature of writ of certiorari calling for the records pertaining to the assessment order passed by the 5th respondent dated 16-11-2OO7 , confirming the demand of tax of Rs.^{'t,20,96,5611} and the order passed by the 4th respondent vide orders dated '10-01-2008 signed on 24-01-2OOB in Appeat No. 8V/67/2O07-08 reiecting the application of stay made in the said appeal and other relevant records issue a

¶20

Writ or direction, nrore particularly one in the nature of Writ of Mandamus declaring the same as arbitrary, illegal and unco n stitutio nal being in gross violation of the Articles 14, 19,246,301 of the Constitution of lndia and also in violation of the decision rendered by the Hon'ble Supreme Court of lndia in the case of BSNL Vs. Union of lndia reported in 2006 (3) SCC, page l and consequently, set a side the same.

¶21

|.A.NO:1 OF 2008(WPMP. NO: 265'l OF 2008)

¶22

Petition under Section^'l 51 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to suspend the operation of the orders of the respondent No5 in TlN. No. 28917658317, dated 29-01-2008 issued to the bankers of the^petitioner company under Section 29 of the AP AT-05 Act directing the^payment of Rs.1 ,05,84,491i-

¶23

l.A.NO:2 OF 2008(WPMP. NO: 2652 OF 2008)

¶24

Petition Under Section 151 CPC praying that in the crrcumstances stated in the affidavit filed in support of the petition, the High Court may be^pleased to stay all further proceedings pursr.rant to the impugned assessment order issued by the 5th respondent on 16-1 1-2007 for the assessment^year 2006-07 and 2007-08 (Upto July 2008) including recovery of the disputed tax from the petitioner company.

¶25

Counsel for the Petitioner : Sri.Panasia Advocates and Consultants

¶26

Counsel for the Respondent No.1 : GP For Revenue

¶27

Counsel for the Respondent Nos.2 to 5 : GP For Commercial Tax

¶28

Counsel for the Respondent No.6 :^--

¶29

The Court made the following Order :-

¶30

THE HON'BLE SRI JUSTICE^{P.SAM KOSITY}

¶31

AND

¶32

THE HON'BLE SRI^{WSTICE A. LAXMI NARAYANA}

¶33

WRIT PETITION No.2O79^{of 2OO8}

¶34

ORDER: k)er Hon'bte Sn^{Justice P.SAMKosHy)}

¶35

Heard learned counsel appearing^{for the petitioner in this} writ petition and learned Government^{Pleader for Commercial} Tax.

¶36

The instant writ petition has been filed^{assailing the action} on the part of the respondent, so far the^{demand notice dated} l6.lL2OOZ issued by the respondents under the^provisions of Rule 25(5) of the Andhra Pradesh Value Added Tax, 2005 and the subsequent assessment order issued towards value added tax imposed on the recharge vouchers taking them as the^goods sold by the petitioner's company.

¶37

Today, when the matter is taken up for hearing, it has been informed by the learned counsel appearing on either^side that the issue involved in the^{present writ petition has been} squarely covered by the decision^{renderedby the DivisionBench} of this High Court in the case of 2O1l^{SCC OnLine AP 1O7O in} the case of State of Andhra Pradesh^us. Bharat^{Sanchar Nigam} Limited^(and other cases,f,^{u,herein it has been categorically held} that SIM cards, recharge coupon^{voucher's,mobile telephone}

¶38

¶39

rentals on post-p,id, connections, value added services such as ring tones, nttrsic downloads, wall papers, etc., ald proceeds received on shiring of infrastructure cannot be subjected to tax either under Section 4 (1) or Section 4(g) of the aforesaid Act.

¶40

It has been further brought to the notice of the Bench by the learned counsel appearing on either side the order passed by the Division Bench of this High Court further in subjected to challenge belorc the Hon'ble Supreme Court vide Special Leave Petition (C) No(S).16551-16555 of 2Ot2, which stood finally dismissed vide order dated 1 I .O4 .2023.

¶41

Given the fact that the issue involved in the present writ petition stands squarely covered by the aforesaid judgment, present u'rit petition deserves to be accordingly allor.r,ed.

¶42

The deman,l notice oI assessment of value added tax issued by the Assistant Commissioner (CT) LTU, Begumpct Division, Hyderabad dated 16. 11.2OO7 for the 7,ear 2006_0T irrcluding the r:covery of disputed amount stand set aside / quashed.

¶43

In the lighr of writ petition getting allow.ed, whatever deposits tl-rat havr: been made by the petitioner pursuant to the demand noticc under challengr: in this writ petition, the

¶44

¶45

respondents shall take necessary steps in ensuring refund o[

¶46

those amounts forthwith

¶47

The writ petition is accordingly stands allowed. No order as

¶48

to costs.

¶49

Consequently, miscellaneous petitions pending, if any,

¶50

shall stand closed

¶51

That Rule Nisi has been made absolute^{as above.} Witness THE HON'BLE THE CHIEF^{JUSTICEALOK ARADHE, on this} Wednesday, the Ninth day of August,^{Two Thousand and TwentyThree.}

¶52

SD/. K.SREERAMA MURTHY ASSISTANI REGISTRAR //TRUE COPY/I (4)

¶53

SECTION OFFTCER

¶54

¶55