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2010 DIGILAW 1865 (ALL)

BHARTI AIRTEL LIMITED v. STATE OF U. P.

2010-06-04

RAJIV SHARMA, SATISH CHANDRA

body2010
JUDGMENT Heard Shri Ashish Mishra and Shri H. P. Srivastava learned Additional Chief Standing Counsel for the respondents. Whether the tax imposed by the assessing officer under the U.P. Value Added Tax Act, 2008 treating artificially created light energy (ACLE) as "goods" is correct or not is involved in the present writ petition. While imposing the tax under the Value Added Tax Act, the assessing officer had relied upon the judgment of the Karnataka High Court in Bharti Airtel Ltd. (formerly Bharti Tele Ventures Ltd.) v. State of Karnataka [2009] 22 VST 465. It has been stated by the learned counsel for the petitioner that the judgment of the Karnataka High Court has been set aside by the honourable Supreme Court and in spite of categorical pleading with that regard, the assessing officer had not taken into account the judgment of the honourable Supreme Court. The objection raised by the petitioner before the assessing officer has been filed, which shows that specific plea was taken by the petitioner advancing arguments that judgment of the Karnataka High Court has been set aside by the honourable Supreme Court in appeal vide order dated March 2, 2009. (Bharti Airtel Ltd. v. State of Karnataka [2010] 32 VST 432 (SC)). A perusal of the judgment of the honourable Supreme Court shows that their lordships had left it open to the first appellate authority to decide the controversy as to whether ACLE may be treated as "goods" under the Act or not ? The observation made by the Karnataka High Court with regard to the controversy has been set aside by the honourable Supreme Court. Since specific plea was raised by the petitioner before the assessing officer, it was incumbent upon the assessing officer to record a finding on the ground raised by the petitioner. The assessing officer should have passed a speaking and reasoned order, keeping in view the ground raised by the petitioner, instead of mechanically deciding the issue in terms of the Karnataka High Court. While approaching this court under writ jurisdiction the petitioner had prayed for issuance of writ in the nature of certiorari to quash the impugned order passed by the assessing officer. Admittedly, the petitioner has got alternative remedy to prefer an appeal under section 55 of the U.P. VAT Act, 2008. While approaching this court under writ jurisdiction the petitioner had prayed for issuance of writ in the nature of certiorari to quash the impugned order passed by the assessing officer. Admittedly, the petitioner has got alternative remedy to prefer an appeal under section 55 of the U.P. VAT Act, 2008. It has been settled by the apex court in various cases Dwarka Prasad Agarwal v. Ramesh Chander Agarwal reported in [2003] 6 SCC 220, Dipak Chandra Ruhidas v. Chandan Kumar Sarkar [2003] 7 SCC 66, Bimal N. Desai v. State of Karnataka [2003] 5 SCC 395, National Highways Authority of India v. Ganga Enterprises [2003] 7 SCC 410 and Union of India v. Ingersoll Rand (India) Ltd. [2001] 10 SCC 617 that power of appellate court is much wider than the power of this court available under article 226/227 of the Constitution of India. In view of the above, the appellate authority has got ample power to adjudicate the controversy raised by the petitioner while approaching this court under extraordinary remedy of article 226 of the Constitution of India. Accordingly, we are not inclined to interfere with the order passed by the assessing authority. However, the petitioner's counsel undertakes to prefer an appeal within a period of two weeks from today. Accordingly, it is provided that in case appeal is preferred before the appellate authority within a period of two weeks from today the appellate authority shall decide the same keeping in view the ground raised by the petitioner as well as judgment of the honourable Supreme Court referred by the petitioner or any other judgment of the honourable Supreme Court or High Court and shall pass a reasoned order expeditiously within a period of four months from the date of filing of appeal. For the period of four months petitioner shall not be compelled to deposit the tax imposed by the assessing officer. Writ petition is disposed of accordingly. Costs easy.