THE HONOURABLE SRI JUSTICE GODA RAGHURAM AND THE HONOURABLE SRI JUSTICE G.V.SEETHAPATHY W.P.NO.27234 OF 2009 15-12-2009 BETWEEN; Tata Tele Services Limited, rep. by its SeniorManager-Finance ...Petitioner vs. The Assistant Commissioner (CT) Large TaxPayer Unit, Hyderabad and two others ...Respondents THE HONOURABLE SRI JUSTICE GODA RAGHURAM AND THE HONOURABLE SRI JUSTICE G.V.SEETHAPATHY W.P.NO.27234 OF 2009 ORAL ORDER: (Per GR,J) The order of the 3rd respondent-revisional authority dated 25-11 2009 rejecting the revision preferred by the petitioner against the order o the 2nd respondent dated 22-10-2009 is impugned. The petitioner is a public limited company inter alia involved i provision of telecommunication services. It asserts to have an independen business of sharing infrastructure with other telecommunication operators This activity, of sharing of infrastructure is a support service of the busines and commerce of the petitioner, is also the plea. By an agreement dated 08-11-2007, the petitioner agreed to sell an transfer to M/s.Wireless TT Info Services Limited (M/s Wireless), it passive infrastructure division together with the business, plant an machinery, the assets and liabilities including the secondary books an records; business stock, ancillary and incidental areas relating to the sai business including employees and personnel deployed in respect of th transferred assets. This agreement however excludes the telecom equipment hosted on top of the Cell Site Steel Towers from the passiv infrastructure i.e., the subject matter of the transfer. The transfer was on slump sale basis. The 1st respondent by the order of assessment dated 17.08.200 brought to tax, treating as a sale the transfer covered under the agreemen dated 08-11-2007. Aggrieved, the petitioner preferred an appeal unde Section 31 of the A.P.VAT Act,2005 before the 2nd respondent and alon therewith an application for grant of stay. The 2nd respondent by the orde dated 22-10-2009 rejected the application for stay, allegedly withou recording reasons for the rejection. Aggrieved thereby, the petitione preferred a revision before the 3rd respondent along with a petition seekin stay of recovery of the amount as determined due by the order o assessing authority. This revision petition was rejected by the impugne order dated 25-11-2009, by the 3rd respondent. Before the appellate authority and the revisional authority th petitioner urged that what was transferred under the agreement dated 08 11-2007 was an independent and ongoing business of the petitioner t M/s. Wireless; that the transfer of the passive infrastructure, in particular th cell site steel towers whether ground based or rooftop towers would no constitute movable property and therefore cannot be treated as a sale; tha if the agreement dated 08-11-2007 were to be fairly and truly construed holistically and in particular having regard to the fact that not only are ce towers etc., transferred but the employees, other personnel and the entiret of the business as well, hence there is ample warrant for grant of stay. Th impugned order is perverse as it failed to consider the detaile representation dated 19-11-2009 submitted to the 3rd respondent whil seeking revision of the appellate order and grant of stay therein, is th substantive contention herein. Sri A.K.Jaiswal, the learned counsel for the petitioner states that of th total tax liability of Rs.11.17 Crores as determined by the assessin authority, the petitioner already paid Rs.2.40 Crores including towards pre deposit while preferring an appeal and only a balance of Rs.8.77 Crores i payable. It is also urged that while the value of the assets transferred unde the agreement dated 08.11.2007 is Rs.37 Crores as mentioned in para.3-A of the said agreement, the assessing authority erroneously computed th value as Rs.77 Crores approximately, an aspect, which was overlooke both by the appellate and revisional authorities. It is also contended tha taking into account the overall facts and circumstances of the case, the 3r respondent-revisional authority must be held to have erred in the exercis of discretion in totally rejecting grant of stay by reiterating the finding recorded by the assessing authority. Reliance for this contention, as to th irrationality of the 3rd respondent in failing to record adequate reasons fo rejecting the revision is placed on the decision of the Supreme Court i Ravi Gupta Vs. Commissioner of Sales Tax, Delhi ([1]). The learne counsel for the petitioner would also rely on the decision of the Suprem Court in Triveni Engineering & Industries Ltd., and another Vs Commissioner of Central Excise and Another ([2]) for contending tha the transfer of cell towers cannot be construed as a sale as it would no constitute immovable property. Reliance is also placed on the decision o the Supreme Court in State of Karnataka and Another Vs. Shreya Papers (P) Ltd. And Others ([3]) in support of the contention that sinc the transfer effected under the agreement dated 08-11-2007 is not merel of the infrastructure but other components of the business as well such a the assets and liabilities as well as employees and personnel, th appellate and revisional authorities erred in failing to apply the provision of the Rule 36 of the A.P. VAT Rules,2005 and treating the transfer as on excluded from the taxing contours of the Act. In this writ petition what is challenged is an order of the 3r respondent dated 25-11-2009 exercising statutory discretion to reject th revision and thereby in substance declining grant of stay. We ar conscious that a detailed analysis and a pronouncement on the merits o the various contentions urged by the petitioner (notwithstanding recordin of adequate caveats by this Court), might influence the adjudicativ discretion of the appellate authority before whom the substantive appeal o the petitioner is pending. None of the substantive contentions urged o behalf of the petitioner invite a linear conclusion whether the transfer of th passive infrastructure under the agreement dated 08-11-2007 falls withi the scope of the provisions of the Rule 36 of the A.P.VAT Rules, 2005 This is not a pure question of law but a mixed question of fact and involve appreciation of the various components of agreement. In the intrinsi nature of the appellate exercise pending before the 2nd respondent, thi Court is not inclined to record findings on the merits of the severa contentions by the petitioner on the substantive merits of its claims. What all could prima facie is stated without intending to influence th appellate decision, is that the petitioner has an eminently arguabl position on merits before the appellate authority. In the circumstances, th 3rd respondent ought to have exercised the discretion in the matter o considering the revision. We therefore, consider it appropriate in the circumstances, to direc the Revenue/respondent not to initiate any coercive process for collectin the tax liability due, as assessed by the 1st respondent i respect of the assessment year 2007-08, on condition that the petitione deposits an amount of Rs.4.00 Crores (Rupees Four Crores Only) with th 1st respondent within a period of eight (8) weeks from today. In default o such deposit within the stipulated time, the direction herein shall stan dissolved and the Revenue would be at liberty to pursue appropriat process for collecting the balance tax due, in accordance with law. The writ petition is accordingly disposed of at the stage of admissio after hearing the leaned counsel for the petitioner and Sri A.V.Krishn Koundinya, the learned Special Standing Counsel for Commercial Taxes No costs. ______________ GODA RAGHURAM,J _______________ G.V.SEETHAPATHY,J 15th DECEMBER 2009 Note: Issue CC in two Days. (B/O) TSNR [1] 2009 (237) E.L.T 3 (S.C) [2] (2000) 7 Supreme Court Cases 29 [3] (2006) 1 Supreme Court Cases 615