IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN WEDNESDAY, THE 14TH OCTOBER 2009 / 22ND ASWINA 1931 WP(C).No. 27616 of 2003(K) -------------------------- PETITIONER(S): --------------- BPL MOBILE CELLULAR LTD., XL 5115, ASHIS BUILDING, SHANMUGHAM ROAD, KOCHI-682 031, REPRESENTED BY ITS ASST.MANAGER (LEGAL), MR.RAJESH MELETH VEETTIL. BY ADV. SRI.A.KUMAR RESPONDENT(S): --------------- 1. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY, MINISTRY OF FINANCE, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. COMMISSIONER OF COMMERCIAL TAXES, THIRUVANANTHAPURAM. 3. THE ASSISTANT COMMISSIONER (ASSMT.), COMMERCIAL TAXES, SPECIAL CIRCLE-I, ERNAKULAM. 4. DEPUTY TAHSILDAR (R.R), ERNAKULAM. GOVERNMENT PLEADER SRI.V.K.SHAMSUDEEN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 14/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C).No. 27616/03 APPENDIX PETITIONER(S)' EXHIBITS P1. COPY OF THE COMMUNICATION DTD.3.1.99. P2. COPY OF THE ORDER DTD.27.3.02 BY R3. P3. COPY OF THE REPLY DTD.20.6.03 TO R3. P4. COPY OF THE ASSESSMENT ORDER DTD.24.6.O3 BY R3. P5. COPY OF THE CLARIFICATION ORDER DTD.7.3.03 BY R2. Sdk+ ///True copy/// P.A. to Judge S.SIRI JAGAN, J. ================== W.P(C).No.27616 of 2003 ================== Dated this the 14th day of October, 2009 J U D G M E N T The petitioner is a company incorporated under the Companies Act engaged in the business of providing cellular mobile telephone services. They are also selling mobile phones/handsets. A question arose as to under which entry of the sales tax tariff, the petitioner has to pay sales tax in respect of mobile phones. The petitioner approached the Board of Revenue. A clarification was issued to the effect that mobile phones fall under entry No.5.17 of Schedule VI to SRO 1728 of 1993, under which goods mentioned in the Schedule are eligible for a reduced rate of tax. Accordingly, the petitioner was paying tax only at 6 per cent as against 10 per cent. The petitioner was collecting sales tax from the customers only at 6 per cent. The 3rd respondent initiated proceedings under Section 19 of the Kerala General Sales Tax Act for reopening the assessment for the assessment year 1997-98, on the ground that the petitioner is liable to pay sales tax at the rate of 10 per cent for mobile phones. Although the petitioner objected to the same, a revised assessment order was passed as Ext.P4. The petitioner is challenging Ext.P4 order in this writ petition. 2. I have heard the learned Government Pleader also. 2 3. It is not disputed by the learned Government Pleader that the issue involved in this writ petition is squarely covered in favour of the petitioner, by a Division Bench decision of this Court in S.T. Rev. No.292 of 2004 and W.P.(C).No. 29642/2004, in which this Court held that as provided under entry No.5.17 of Schedule VI to SRO 1728 of 1993, for sale of mobile phones/handsets, sales tax payable is only 6 per cent. Accordingly, Ext.P4 order is quashed. The writ petition is allowed as above. Any amount paid by the petitioner pursuant to the interim order in this case or otherwise, in accordance with Ext.P4 shall be adjusted against the future tax payable by the petitioner or if the petitioner is not liable to pay any tax, the same shall be refunded within one month from the date of receipt of a certified copy of this judgment. Sd/- sdk+ S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge