IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.21057 of 2011 ====================================================== M/S Reliance Telecom Ltd., through Sri Tarun Kumar Singh, aged about 43 years, son of Sri Shiva Kumar Singh, Resident of 204, Tirupati Apartment, A.N Path, Boring Road, Patna, Bihar. .... .... Petitioner Versus 1. The State of Bihar, Patna. 2. The Commissioner of Commercial Taxes, Bihar, Patna. 3. The Joint Commissioner of Commercial Taxes (Appeals), Central Circle, Patna. 4. The Deputy Commissioner of Commercial Taxes, Patliputra Circle, Patna. 5. The Assistant Commissioner of Commercial Taxes, Patliputra Circle, Patna. .... .... Respondents ====================================================== With Civil Writ Jurisdiction Case No.21285 of 2011 ====================================================== M/S Reliance Telecom Ltd., through Sri Tarun Kumar Singh, aged about 43 years, son of Sri Shiva Kumar Singh, Resident of 204, Tirupati Apartment, A.N Path, Boring Road, Patna, Bihar. .... .... Petitioner Versus 1. The State of Bihar, Patna. 2. The Commissioner of Commercial Taxes, Bihar, Patna. 3. The Joint Commissioner of Commercial Taxes (Appeals), Central Circle, Patna. 4. The Deputy Commissioner of Commercial Taxes, Patliputra Circle, Patna. 5. The Assistant Commissioner of Commercial Taxes, Patliputra Circle, Patna High Court CWJC No.21057 of 2011 (3) dt.19-12-2011 2 / 4 2 Patna. .... .... Respondents ====================================================== Appearance : (In both cases) For the Petitioner : Mr. L.N.Rastogi, Advocate For the Respondents : Mr. Lalit Kishore, AAG-1 Mr. Vikash Kumar, A.C. to AAG-1 ====================================================== CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE BIRENDRA PRASAD VERMA ORAL ORDER (Per: HONOURABLE THE CHIEF JUSTICE) 3. 19-12-2011 These two writ Petitions under Article 226 of the Constitution are filed against the notice of demand dated 5th November 2011 issued by the Assistant Commissioner of Commercial Taxes, Patna against the petitioner M/s Reliance Telecom Limited for recovery of the amount of sales tax, penalty and value added tax over the sale of mobile telephones (hand sets+SIM cards) for the financial years 1997-98 to 2007-2008. Learned counsel Mr. L.N.Rastogi has appeared for the petitioners. The challenge is two fold. Mr. Rastogi has submitted that against the notice of demand the petitioner has preferred appeals before the Commercial Taxes Tribunal. However, the Commercial Taxes Tribunal is not functional. Therefore, until the Tribunal becomes functional, hears and decides the appeals preferred by the petitioner there shall be stay of the impugned notice of demand. Mr. Rastogi has also submitted that SIM card is provided with the hand sets as part of service and not as goods. The SIM card not being ‘goods’ is not exigible to Patna High Court CWJC No.21057 of 2011 (3) dt.19-12-2011 3 / 4 3 sales tax or value added tax. To buttress his submission Mr. Rastogi has relied upon the judgment of the Hon’ble Supreme Court in the matter of Idea Mobile Communication Ltd. v. Commissioner of Central Excise and Customs, Cochin, {[2011] 43 VST 1 (SC)}. He has submitted that in the aforesaid matter, the Hon’ble Supreme Court has held that a SIM card is not a tangible goods. It is, therefore, not liable to levy of sales tax. Petitions are contested by the learned Additional Advocate General Mr. Lalit Kishore. He has submitted that the aforesaid decision of the Hon’ble Supreme Court in the matter of Idea Mobile Communication Ltd. arises out of a judgment of the Kerala High Court. The definition of ‘goods’ in the Kerala Government Sales Tax Act and the one prevalent in the Bihar State are essentially different. The definition of ‘goods’ in the State of Bihar is wide enough to cover the SIM card also. He has further submitted that the matters are at large before the Tribunal. The writ Petitions, therefore, need not be entertained. We are of the opinion that pending the appeals before the Tribunal, the writ Petitions under Article 226 of the Constitution in the same subject matter shall not lie. However, as the Tribunal is not functional some protection may be given to the petitioner. On perusal of the records it is evident that the notice of demand includes the tax and the penalty. The tax demanded is not only on the sale of SIM card it also refers to the sale of hand sets. In the circumstances, the ends of justice shall be served if the petitioner is protected against coercive recovery on condition that the petitioner pays 2/3rd of the demand within one month from today. For the aforesaid reasons, it is directed that the Patna High Court CWJC No.21057 of 2011 (3) dt.19-12-2011 4 / 4 4 respondents, pending the appeal before the Tribunal below, will not make coercive recovery provided the petitioner pays 2/3rd of the demand raised under the impugned notice of demand within one month from today. Subject to the above direction, the Petitions are disposed of. Pawan/- (R.M. Doshit, CJ) (Birendra Prasad Verma, J)