IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. CWP No. 6192 of 2005 (O&M) Date of Decision: November 11, 2009 Bharat Sanchar Nigam Ltd. …Petitioner Versus State of Punjab and others …Respondents CORAM: HON'BLE MR. JUSTICE M.M. KUMAR HON’BLE MR. JUSTICE JASWANT SINGH Present: Mr. Anil Rathee, Advocate, for the petitioner. Mr. Piyush Kant Jain, Addl. AG, Punjab, for the respondents. 1. To be referred to the Reporters or not? 2. Whether the judgment should be reported in the Digest? M.M. KUMAR, J. This petition filed under Article 226 of the Constitution challenges assessment order dated 30.4.2004 (P-2), under Section 11(6) of the Punjab General Sales Tax Act, 1948 (for brevity, ‘the Act’), passed by the Assessing Authority-respondent No. 4, raising a demand of Rs. 1,42,72,133/- as sales tax for the assessment year 1998-99. Challenge has also been made to the order dated 28.12.2004 (P-7) passed by the Deputy Excise and Taxation Commissioner (Appeals)-respondent No. 3, directing the petitioner to pay Rs. 5,00,000/- by 7.3.2005 before his appeal could be heard on merits and to appear on the said date with proof of payment. Still further, order dated C.W.P. No. 6192 of 2005 16.3.2005 (P-9) passed by the Sales Tax Tribunal-I, Punjab (for brevity, ‘the Tribunal’), has been challenged whereby the appeal filed by the petitioner has been dismissed and it has been directed to deposit the amount within one month and to appear before the Appellate Authority along with proof of deposit. It is a conceded position that the issue involved with regard to exigibility to save tax under the Punjab General Sales Tax Act,1948 is no longer res integra as the same stands settled by this Court in various writ petitions including C.W.P. Nos. 9032, 1154 and 5860 of 1997. In the said petitions, a Division Bench of this Court took the view that the Union of India have been charging rent for connecting telephone instrument placed in the premises of the subscriber with the Telephone Exchange by way of telegraphic lines and till the instrument is connected with the Telegraph lines to the Telephone Exchange, the instrument placed in the premises of the subscriber is useless. It is through the telegraph line that apparatus is activated. Therefore, mere charge of the rent or fee as per measured rate system or message rate system can not be equated with the sale of goods within the meaning of the Act. Against the view taken by a Division Bench of this Court, a number of appeals were filed before Hon'ble the Supreme Court, which included Civil Writ Petition Nos. 4278-4288 of 2002. Hon'ble the Supreme Court has taken the same view in the case of Bharat Sanchar Nigam Limited v. Union of India, (2006) 3 SCC 1. Again the aforesaid issue came up for consideration in the case of Union of India v. State of Punjab (LPA No. 57 of 2005, decided on 28.1.2009) and the Letters Patent Bench (of which one of us, M.M. Kumar, J. was also a member) while reversing the view taken by a learned Single Judge 2 C.W.P. No. 6192 of 2005 vide order dated 4.11.2004 passed in CWP No. 8256 of 1998, in terms of the judgment of Hon'ble the Supreme Court rendered in Bharat Sanchar Nigam Limited case (supra) quashed the order passed by the Assessing Authority. In the instant writ petition a prayer has been made for quashing the assessment order dated 30.4.2004 (Annexure P/2) passed by the Assessing Authority-respondent no.4 raising a demand towards the sales tax and further the orders dated 28.12.2004 (Annexure P/7) passed by the Deputy Excise and Taxation Commissioner (A) and order dated 16.3.2005 (Annexure P/9) passed by the Tribunal whereby the appeal against the assessment order has been ordered to be entertained with a prior deposit of Rs. 5 lacs. However, in view of the above discussion, we are satisfied that the issue involved with regard to liability of the petitioner to pay sales tax is squarely covered by the judgment dated 28.1.2009 rendered by the LPA Bench in LPA No.57 of 2005 and therefore, we feel no necessity to refer the matter back to the appellate authority as the matter would be unnecessarily delayed. Accordingly the impugned orders dated 30.4.2004, 28.12.2004 and 16.3.2005 (P-2, P-7 & P-9 respectively) are quashed. Parties to bear their own costs. (M.M. KUMAR) JUDGE (JASWANT SINGH) November 11, 2009 JUDGE Pkapoor/joshi. 3