* THE HON’BLE SRI JUSTICE V.V.S.RAO AND THE HON’BLE SRI JUSTICE RAMESH RANGANATHAN +Tax Revision Case Nos.24, 31, 129, 204 and 206 of 2002 and 45, 55, 93, 227 and 246 of 2010 % 01.03.2011 # M/s.Andhra Pradesh State Electricity Board (Now A.P.TRANSCO), Hyderabad. ...Petitioner VERSUS $ State of Andhra Pradesh, rep. by the State Representative before Sales Tax Appellate Tribunal, Hyderabad. ...Respondent < GIST: > HEAD NOTE: ! Counsel for Petitioner: Sri S.Krishna Murthy & S.Suri Babu ^Counsel for Respondent: Sri A.V.Krishna Kaundinya ? Cases referred 1) (1988) 70 STC 215 (AP) : 6 APSTJ 184 (AP) 2) (1995) 99 STC 446 (WBTT) 3) (1996) 7 SCC 637 4) (1999) 113 STC 203 5) (2002) 5 SCC 203 6) (2006) 3 SCC 1 : (2006) 145 STC 91 (SC) 7) (2010) 5 SCC 122 8) (2002) 5 SCC 203 9) (1989) 73 STC 370 : (1989) 2 SCC 645 (para 32) 10) (1989) 75 STC 217 11) (1993) 1 SCC 364 : (1993) 88 STC 204 12) (2002) 3 SCC 314 : AIR 2002 SC 1305 : (2002) 126 STC 114 (SC) 13) (2006) 145 STC 91 (SC) : (2006) 3 SCC 1 THE HON'BLE SRI JUSTICE V.V.S.RAO AND THE HON'BLE SRI JUSTICE RAMESH RANGANATHAN Tax Revision Case Nos.24, 31, 129, 204 and 206 of 2002 and 45, 55, 93, 227 and 246 of 2010 01.03.2011 Between: M/s.Andhra Pradesh State Electricity Board (Now A.P.TRANSCO), Hyderabad. … Petitioner AND State of Andhpra Pradesh, rep. by the State Representative before Sales Tax Appellate Tribunal, Hyderabad. … Respondent THE HON'BLE SRI JUSTICE V.V.S.RAO AND THE HON'BLE SRI JUSTICE RAMESH RANGANATHAN Tax Revision Case Nos.24, 31, 129, 204 and 206 of 2002 and 45, 55, 93, 227 and 246 of 2010 COMMON ORDER: (Per Hon’ble Sri Justice V.V.S.Rao) Andhra Pradesh State Electricity Board (now Andhra Pradesh Transmission Corporation), Hyderabad, is the petitioner in these revision cases. Tax Revision Case Nos.24, 31, 129, 204 and 206 of 2002 are filed against the common order dated 20.06.2000 of the Sales Tax Appellate Tribunal (STAT) and the Tax Revision Case Nos.45, 55, 93, 227 and 246 of 2010 are filed against another common order, dated 10.08.2009. These interrelated revisions are in relation to the assessment years 1988-89 to 1992-93. Therefore, it is necessary to dispose of the matters by a common order. The necessary facts from tax revision case No.227 of 2010 relating to assessment year 1988-89 may be noticed for appreciation of the issues involved in these cases. Petitioner is a dealer under Andhra Pradesh General Sales Tax Act, 1957 (the Act, for brevity) on the rolls of the Commercial Tax Officer (CTO), Khairatabad Circle. The petitioner which is a licencee under the Indian Electricity Act, 1910 is engaged in the business of supplying/selling electricity to various consumers. The consumers are allowed to use the meters to know the electricity consumption every month. The petitioner indisputably collects rentals on the meters installed at the place of consumers where electricity is consumed. For the relevant assessment years, the assessing authority determined the taxable turnover which included meter rentals received from the large number of consumers availing service connections exceeding more than Rs.50 lakhs. Insofar as High Tension (HT) consumers are concerned, the petitioner collected rental charges of Rs.300/- per month where the HT consumers contracted demand is 1500 KVA and below Rs.500, where it is between 1500 KVA and 5000 KVA and Rs.1,000/- for contracted demand exceeding 5000KVA. The petitioner’s contention that as per Section 5-E of the Act, the petitioner has not transferred any right to use the meters to the consumers was negatived by the assessing officer holding under Section 7A, the petitioner did not discharge the burden that they are not liable to pay the tax. Against the order of the assessment officer, dated 31.12.1992, the petitioner preferred appeals under Section 19(1) of the Act. By an order dated 17.12.1994, the appellate Deputy Commissioner allowed the appeals. The appellate authority relying on the decision of this Court in State Bank of India v State of Andhra Pradesh[1] came to the conclusion that the meters are embedded into earth and they are not ‘goods’ for the purpose of levy of tax. A finding was recorded that it is the petitioner that is using the meters to measure electricity consumed and even if the meter is damaged or is not showing the correct reading, it is only the meters of the petitioner that have to remove the seal, repair and re-install it, and therefore, the levy of tax under Section 5-E of the Act is not permissible. By order, dated 25.11.1998, the appellate order was however revised by the Deputy Commissioner under Section 20(2) of the Act. The revisional authority relied on the decision of West Bengal Tax Tribunal (WBTT) in CESC Limited v Commercial Tax Officer[2], which explained the operation of Sections 20, 23 and 26 of the Electricity Act. Being aggrieved, the petitioner preferred Second Appeals before the STAT being T.A.Nos.608, 1032 and 1033 of 1996 and T.A.Nos.96 and 97 of 2000. While holding that the rentals received by the petitioner are liable to be taxed under Section 5-E of the Act, the learned Tribunal remanded the matter to the original assessing authority to reconsider the issue as to whether the meters that were leased out for realizing the rent were already subjected to tax under the Act. The first five tax revision cases are filed against this order. After remand, the assessing officer confirmed the proposal to tax the meter lease rentals. In the appeals as well as before the STAT, the petitioner was unsuccessful. The learned Tribunal held that the burden of providing data for re-calculation of sales tax was not discharged by the petitioner and that the assessing authority and appellate authority acted in accordance with the earlier order of the STAT. As observed by the learned Tribunal, the petitioner expressed inability to furnish the information as directed by the Tribunal before the Appellate Deputy Commissioner. The counsel for the petitioners made the following submissions. The petitioner is required to fix the meter for measuring electricity used by the consumer under the law. Unless and until the meter is supplied and fixed electricity cannot be used and, therefore, the meter is a medium through which electricity supplied. There is no transfer of the right to use the meter involved as contemplated under section 5-E of the Act. When the petitioner discharges its statutory obligations under Section 26 of the Electricity Act, the same does not amount to the transfer of the right to use the meter. Even as per paragraph 261 of A.P.S.E.B. Departmental Manual, rental is not treated as part of the cost of the meter nor depreciation can be claimed by the consumer. And lastly, meter is immovable property and it is not movable property as it is fixed or embedded to the wall. It does not fall within the ambit of the term ‘goods’ and, therefore, sale is not involved. The counsel for petitioner relies on State Bank of India, Indian Aluminium & Co v State of Kerala[3], Union of India v Secretary, Government of A.P.[4] and State of A.P., v NTPC[5]. Special counsel for Commercial Taxes submits that the consumer has an option either to purchase the meter or use the one supplied by the petitioner for availing/consuming electricity. It cannot be treated as a medium through which electricity can be supplied. The meter is an instrument used to measure electricity consumption for the purpose of billing. Therefore, the transaction is the transfer of the right to use the meter which is taxable under Section 5-E of the Act. He would urge that the electricity meter is not a permanent fixture to the immovable property like wall or earth. It can always be removed or re-installed and, therefore, there is a sale of goods involved as contemplated under Section 5-E of the Act. He placed reliance on BSNL v Union of India[6]. The background facts and submissions made across the Bar would throw up the only issue for consideration: whether there is a transfer of the right to use the meter when the Electricity Board supplies and installs the meter for recording the quantity of electricity used by the consumer, for the purpose of billing and collecting charges. We will take up the issue whether the electricity meter ceased to be ‘movable property’ and, therefore, it is not ‘goods’ within the meaning of the term. Indisputably sale means the transfer of the property in the course of trade or business for cash or valuable consideration (Section 2(n) of the APGST Act). ‘Goods’ means all kinds of movable property including goods involved in execution of works contract and also includes all growing crops or things attached to or forming part of the land which are agreed to be severed before sale or under the contract of sale (Section 2(c)). APGST Act levies tax on the sale of movable goods or the goods used in any form in the construction or erection of a thing attached to the land. In a recent decision in Commissioner of Central Excise v Solid and Correct Engineering Works[7], the Supreme Court considered the question whether asphalt drum/hot mix plants installed with concrete foundation at the site of the construction by an assessee can be said to ‘attached to earth’ to be exempted from excise duty? After considering the English and Indian precedents, the Apex Court observed as under (para 30 of SCC). The courts in this country have applied the test whether the annexation is with the object of permanent beneficial enjoyment of the land or building. Machinery for metal-shaping and electro-plating which was attached by bolts to special concrete bases and could not be easily removed, was not treated to be a part of structure or the soil beneath it, as the attachment was not for more beneficial enjoyment of either the soil or concrete. Attachment in order to qualify the expression attached to the earth, must be for the beneficial attachment of that to which it is attached. Doors, windows and shutters of a house are attached to the house, which is imbedded in the earth. They are attached to the house which is imbedded in the earth for the beneficial enjoyment of the house. They have no separate existence from the house. Articles attached that do not form part of the house such as window blinds, and sashes, and ornamental articles such as glasses and tapestry fixed by tenant, are not affixtures. (emphasis supplied) It is therefore settled that “attachment” in order to qualify the expression “attached to earth” must be for the beneficial attachment of that to which it is attached. They have no separate existence from the house and articles attached, they do not form part of the house such as window blinds and sashes and ornamental articles such as glasses and tapestry fixed are not affixtures. Further, as held by the Supreme Court in the above decision, fixing a movable to foundation to make it vibration free and fastening anything attached to earth to secure property do not amount to attaching to earth. Electricity is a basic necessity and it is not luxury. Under the provisions of Indian Electricity Act, 1910 (hereafter ‘Electricity Act’) and Electricity (Supply) Act, 1948 (hereafter ‘Electricity Supply Act’), the APSEB (at the relevant time) indisputably is a licencee to manufacture, transmit and supply electricity for domestic and non-domestic purposes. Electricity is goods, which cannot be stored and has to be used as it is supplied, for the purpose of collecting the costs of the electricity. For that purpose, the quantity of electricity is to be measured by using a meter. The meter has to be fixed in the premises of the consumer at the point where the electricity supply is released from either underground supply lines or surface transmission towers/lines. The mere placing of a meter to measure quantity of electricity for the purpose of billing cannot be said to be attached to earth. Indeed, as we shall presently consider infra, the meter either purchased by the consumer, or rented out by the APSEB, can be removed and placed at any place of the consumers’ choice subject, however, on complying with the regulations, if any. We, therefore, are not inclined to accept the submission that the meter is not movable property and that there is no sale or deemed sale involved therein. The next aspect is in relation to the statutory obligations/rights of the petitioner vis-à-vis the consumer which arise under the agreement for supply of electricity as well as the Electricity Act, Electricity Supply Act and Indian Electricity Rules, 1956 and APSEB Conditions of Supply. It is urged by the petitioner that, being a medium through which electricity is supplied, it cannot come within the ambit of ‘sale’ for the purpose of the Electricity Act. This submission is devoid of any merit. Section 26 of the Electricity Act as amended by Amendment Act, 1959, reads as under. 26. Meters (1) In the absence of an agreement to the contrary, the amount of energy supplied to a consumer or the electrical quantity contained in the supply shall be ascertained by means of a correct meter, and the licensee shall, if required by the consumer, cause the consumer to be supplied with such a meter : Provided that the licensee may require the consumer to give him security for the price of a meter and enter into an agreement for the hire thereof, unless the consumer elects to purchase a meter. (2) Where the consumer so enters into an agreement for the hire of a meter, the licensee shall keep the meter correct, and, in default of his doing so, the consumer shall, for so long as the default continues, cease to be liable to pay for the hire of the meter. (3) Where the meter is the property of the consumer, he shall keep the meter correct, and, in default of his doing so, the licensee may, after giving him seven day's notice, for so long as the default continues, cease to supply energy through the meter. (4) The licensee or any person duly authorised by the licensee shall, at any reasonable time and on informing the consumer of his intention, have access to, and be at liberty to inspect and test, and for that purpose, if he thinks fit, take off and remove, any meter referred to in sub-section (1); and, except where the meter is so hired as aforesaid, all reasonable expenses of, and incidental to, such inspecting, testing, taking off and removing shall, if the meter is found to be otherwise than correct, be recovered from the consumer; and, where any difference or dispute arises as to the amount of such reasonable expenses, the matter shall be referred to an Electrical Inspector, and the decision of such Inspector shall be final : Provided that the licensee shall not be at liberty to take off or remove any such meter if any difference or dispute of the nature described in sub-section (6) has arisen until the matter has been determined as therein provided. (5) A consumer shall not connect any meter referred to in sub- section (1) with any electric supply line through which energy is supplied by a licensee, or disconnect the same from any such electric supply line, without giving to the licensee not less than forty eight hours' notice in writing of his intention. (6) Where any difference or disputes arises as to whether any meter referred to in sub-section (1) is or is not correct, the matter shall be decided upon the application of either party, by an Electrical Inspector, or a competent person specially appointed by the State Government in this behalf; and, where the meter has, in the opinion of such Inspector or person, ceased to be correct, such Inspector or person shall estimate the amount of the energy supplied to the consumer or the electrical quantity contained in the supply, during such time as the meter shall not, in the opinion of such Inspector or person, have been correct; and where the matter has been decided by any person other than the Electrical inspector, an appeal shall lie to the Inspector, whose decision shall in every case be final; but save as aforesaid, the register of the meter shall, in the absence of fraud, be conclusive proof of such amount or quantity. (7) In addition to any meter which may be placed upon the premises of a consumer in pursuance of the provisions of sub- section (1) the licensee may place upon such premises such meter, maximum demand indicator or other apparatus as he may think fit for the purpose of ascertaining or regulating either the amount of energy supplied to the consumer, of the number of hours during which the supply is given, or the rate per unit of time at which energy is supplied to the consumer, or any other quantity or time connected with the supply: Provided that the meter, indicator or apparatus shall not, in the absence of an agreement to the contrary, be placed otherwise than between the distributing mains of the licensee and any meter referred to in sub-section (1); Provided, also, that where the charges for the supply of energy depend wholly or partly upon the reading or indication of any such meter, indicator or apparatus as aforesaid, the licensee shall, in the absence of an agreement to the contrary, keep the meter, indicator or apparatus correct; and the provisions of sub- sections (4), (5) and (6) shall in that case apply as though the meter, indicator or apparatus where a meter referred to in sub- section (1). Explanation :-- A meter shall be deemed to be "correct" if it registers the amount of energy supplied, or the electrical quantity contained in the supply, within the prescribed limits of error," and a maximum demand indicator or other apparatus referred to in sub-section (7) shall be deemed to be "correct" if it complies with such conditions as may be prescribed in the case of any such indicator or other apparatus. A plain reading of the above provision would show that no licencee (that is to say, Electricity Board) can supply electricity without fixing a meter to measure the amount of energy supplied to the consumer. There can, however, be a situation where the electricity can be supplied even without a meter if there is an agreement. The measure of electricity is for the purpose of levying charges under any of the methods provided by sub-section (3). Sub-section (1) of Section 26 casts an obligation on the Electricity Board not only to supply a meter but also to provide correct meter and, sub-section (7), creates a fiction as regards the correctness of the meter. The meter can either be purchased by the consumer, or the Electricity Board may require the consumer to take the meter supplied by them and enter into an agreement for hire. This is made clear by the proviso to Rule 26(1). It is not for the consumer to rectify the meter on his own in case of defect and it is only the officials of the Electricity Board who can enter the premises at all reasonable times and rectify the meter. This is made clear under Rule 57 of the Electricity Rules, which reads as under. The meter may be hired by the consumer or sold to him. Sub- section (2) of Section 26 of the 1910 Act requires that the licensee shall keep the meter correct. If it does not do so, the consumer would not be bound to pay the meter rent. 'Meter rent' is also 'dues' within the meaning of Section 24 of the 1910 Act. … For the purpose of maintenance of meter and/for faking the readings as regards consumers of electrical energy registered therein in terms of sub-section (4) a licensee or any person duly authorised is empowered to enter at any reasonable time and upon informing the consumer of his inspection, the premises for the purpose of testing and inspecting the meter and is also empowered to take it out for the said purpose. A reading of various sub-sections in Section 26 with Rule 57 together would show that the meter may be hired by the consumer or sold to him. In either case, it shall be the duty of the Electricity Board to keep the meter correct and if it is not done so the consumer would not be bound to pay the meter rent within the meaning of Section 24 of the Electricity Act. The purpose of obliging the Electricity Board to supply and maintain the meter correctly and rectify the defect, if any, is in fulfillment of statutory obligations, and it is nothing to do with the transaction which is certainly a transfer of the right to use the meter for the purpose of availing electricity. Indeed, we may mention that under the Section 55 of Electricity Act, 2003, no transmission company or distribution company can supply electricity without there being a meter to measure the quantity of electricity at the place of the consumer. The supply of electricity from the place of generation to the place of consumption is one thing and collecting the cost or charges, for the electricity as regulated under law, is a different thing. Both cannot be confused. The following observations in State of Andhra Pradesh v NTPC[8], cannot be understood as making the meter an integrated and inseparable medium for use of electricity. … what electricity is, as understood in law, and what are its relevant characteristics. It is settled with the pronouncement of this Court in CST v Madhya Pradesh Electricity Board, Jabalpur ((1969) 1 SCC 200) that electricity is goods. The definition of goods as given in Article 366(12) of the Constitution was considered by this Court and it was held that the definition in terms is very wide according to which "goods" means all kinds of moveable property. The term "moveable property" when considered with reference to "goods" as defined for the purpose of sales-tax cannot be taken in a narrow sense and merely because electrical energy is not tangible or cannot be moved or touched like, for instance, a price of wood or a book it cannot cease to be moveable property when it has all the attributes of such property. It is capable of abstraction, consumption and use which if done dishonestly is punishable under Section 39 of the Indian Electricity Act. 1910. If there can be sale and purchase of electrical energy like any other moveable object, this Court held that there was no difficulty in holding that electric energy was intended to be covered by the definition of "goods". However, A.N. Grover, J. speaking for three-Judge Bench of this Court went on to observed that electric energy "can be transmitted, transferred, delivered, stored, possessed etc. in the same way as any other moveable property". In this observation, we agree with Grover, J. on all other characteristics of electric energy except that it can be 'stored' and to the extent that electric energy can be 'stored', the observation must be held to be erroneous or by oversight. The science and technology till this day have not been able to evolve any methodology by which electric energy can be preserved or stored. We may also refer to the “Terms and Conditions and the method of availing electrical supply” notified by the APSEB vide Board proceedings No.690, dated 17.9.1975. A consumer means any person who is supplied with electrical energy by the Board and includes any person whose premises are, for the time being, connected for the purpose of receiving electrical energy (Condition 2.5). So as to avail supply of the electrical energy, a person has to apply in the prescribed form (Condition 3.1). As per Condition 5, the Board shall not be bound to supply energy to the consumer unless such supply is