Research › Search › Judgment

Telangana High Court · body

2020 DIGILAW 574 (TS)

Sis Teleservices Private Limited v. Assistant Commissioner

2020-07-22

M.S.RAMACHANDRA RAO, T.AMARNATH GOUD

body2020
JUDGMENT M.S. Ramachandra Rao, J. - Heard counsel for petitioner and Sri J.Anil Kumar, Special Counsel for Commercial Taxes appearing for respondents. 2. In this Writ Petition, petitioner assails the assessment order AO.No.55782 dt.31.03.2020 passed by the 1st respondent under the CST Act, 1956 for the assessment year 2015-16. 3. Petitioner is a Company registered under the Companies Act, 1956 and is engaged in the business of Telecom Tower Installation Services. It is an assessee under the provisions of the Telangana VAT Act, 2005 on the rolls of the 1st respondent. 4. The 1st respondent issued a show cause notice dt.08.08.2016 proposing to complete the assessment of the petitioner on a gross and net turnovers of Rs.2,66,09,166/- and proposing to levy tax @ 14.5% amounting to Rs.38,58,329/- for the year 2015-16(CST). 5. Petitioner filed objections thereto stating that there were no sales affected by the petitioner in the course of inter-state trade, no branch transfers and no export sales, and the turn-over reflected in the exempt sales column tantamount to rentals received by the petitioner, on which service tax has been paid by the petitioner. It is further contended that in the absence of inter-state sales, branch transfers and export sales, NIL assessment order ought to have been passed by the 1st respondent since there is no sales turn over in respect of either inter-state or export sales. 6. But by Assessment order No.55782 dt.31.03.2020, the 1st respondent rejected the said contention. 7. Counsel for the petitioner contends that the show cause notice was issued to the petitioner on 08.08.2016 by one officer, but the assessment order was passed by a different officer, who succeeded him; that the objections filed by the petitioner have not been considered by the 1st respondent; and the 1st respondent also failed to note that because of the nature of the activities of the petitioner i.e., erection of towers in the State of Telangana and giving said towers to different operators on payment of rent, who are operating mobile phones services in the State of Telangana, and since there is no other activity being carried on by the petitioner, like an inter-state sale, petitioner was filing NIL returns in CST-VI under the CST Act, 1956 . Petitioner contended that the turnover that had been declared in the monthly VAT 200 returns were the service charges, which the petitioner received in the State of Telangana, on which the petitioner is paying service tax under the Finance Act, 1994; that this specific plea was taken by the petitioner in its reply to the show cause notice issued by the 1st respondent, but the same is neither adverted to nor considered; that hurriedly the 1st respondent appears to have passed the impugned order since it would get barred by limitation, if it is passed beyond 31.03.2020; and therefore, the said order is unsustainable. 8. Sri J.Anil Kumar, Special Counsel for Commercial Taxes appearing for respondents states on instructions that the 1st respondent is willing to reconsider the matter since the impugned assessment order does not advert to the petitioner's objections. 9. When the petitioner had specifically raised a contention that the petitioner has no turnover, which is taxable under the CST Act, 1956, and what was declared by it in the monthly VAT returns is service tax, which the petitioner is receiving in the State of Telangana for allowing Telecom Operators to use the tower facilities erected by it in the State, on which the petitioner was paying service tax under the Finance Act, 1994, the 1st respondent is expected to advert to the said contentions and deal with it in the impugned assessment order. However, the 1st respondent has not done so, while passing the impugned assessment order. 10. In view of the said submissions, this Writ Petition is allowed; the impugned assessment order AO.No.55782 dt.31.03.2020 passed by the 1st respondent is set aside; the matter is remitted back to the 1st respondent to consider afresh the objections filed by the petitioner to the showcause notice dt.08.08.2016; the 1st respondent shall afford a personal hearing to the petitioner and then pass a reasoned order in accordance with law and communicate it to the petitioner. No order as to costs. 11. Consequently, miscellaneous petitions, pending if any, shall stand closed.