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M/s. ABM Tele Mobiles India Pvt. Ltd. and Others Vs. The Assistant Commissioner of Commercial Taxes and Others - Court Judgment

LegalCrystal Citation
CourtKarnataka High Court
Decided On
Case NumberWrit Petition Nos. 27612, 27623 of 2016 C/W 27801, 812 of 2016, 29144, 155 of 2016, 29156, 167 of 2016, 29957, 968 of 2016, 35171, 35174, 37347, of 2016, 40689, 699 of 2016, 39954, 958 of 2016, 43323, of 2016, 47719, 729 of 2016, 43324 of 2016, 47428, 438 of 2016, 47129, 49131-141 of 2016 47130, of 2016 & 49142, 152 of 2016
Judge
AppellantM/s. ABM Tele Mobiles India Pvt. Ltd. and Others
RespondentThe Assistant Commissioner of Commercial Taxes and Others
Excerpt:
.....39(2), section 36(1) and section 72(2) of act for relevant assessment period - court held mobile battery chargers (mbc), cannot be treated as part of mobile phones itself and they are mere accessories of mobile phone and are to be taxed separately irrespective of their packing in common package with mobile phones other issues of assessment have already been left open to be raised before appellate authorities under act, as petitioner has alternative remedy against assessment orders and therefore they have been left free to agitate those points before such appellate authorities petitions dismissed. (paras: 4, 5) case relied on: state of punjab and others versus nokia india private limited (2015) 77 vst 427 (sc). cases referred: m/s. lava international limited vs. state..........for the assessment period april 2011 to march 2012 i.e., annexure f and f1 respectively. these writ petitions are filed under articles 226 and 227 of the constitution of india praying to quash the impugned notices issued by the r-1 u/s.69/1 and 69(2) r.w. section 39(1) of the kvat act, for the period of 2010-11 dated 2.2.2016 and 6.4.2016 i.e., annexure-f and f1 respectively. these writ petitions are filed under articles 226 and 227 of the constitution of india, praying to quash the impugned notices issued by r-1 u/s 39(1), 36(1), and 72(2) of the kvat act rules, for the tax period 2010-11 dated 3.5.2016 i.e., annexe respectively. these writ petitions are filed under articles 226 and 227 of the constitution of india praying to quash the impugned notice issued by the r-1 u/s.39 of.....
Judgment:

(Prayer: These Writ Petitions are filed under Articles 226 and 227 of the Constitution of India praying to quash the impugned order passed by the R-1 u/S 39(2) of the KVAT Act, R.W. Sec. 36(1) and Sec. 72(2) of the KVAT Act, dated 12.4.2016 for the Assessment Period April 2011 to March 2012 and the consequential demand notice issued by the R-1 in VAT form 180 dated 12.4.2016 for the Assessment period April 2011 to March 2012 i.e., Annexure F and F1 respectively.

These Writ Petitions are filed under Articles 226 and 227 of the Constitution of India praying to quash the impugned notices issued by the R-1 u/S.69/1 and 69(2) R.W. Section 39(1) of the KVAT Act, for the period of 2010-11 dated 2.2.2016 and 6.4.2016 i.e., Annexure-F and F1 respectively.

These Writ Petitions are filed under Articles 226 and 227 of the Constitution of India, praying to quash the impugned notices issued by R-1 u/S 39(1), 36(1), and 72(2) of the KVAT Act Rules, for the Tax period 2010-11 dated 3.5.2016 i.e., Annexe respectively.

These Writ Petitions are filed under Articles 226 and 227 of the Constitution of India praying to quash the impugned notice issued by the R-1 u/S.39 of the KVAT Act, for the Tax period 2012-13 dated 6.4.2016 i.e., Annex-E.

These Writ Petitions are filed under Articles 226 and 227 of the Constitution of India, praying to quash the impugned order passed by R-1 u/S 39/1, 36 and 72(2) of the KVAT Act, R.W. rule 46 of the KVAT Rules, dated 29.4.2016 for the assessment period April 2010 to March 2011 and the consequential demand notice issued by R-1 in VAT form 180, dated 7.5.2016 for the assessment period April 2010 to March 2011 i.e., Annex-C and C1.

These Writ Petitions are filed under Articles 226 and 227 of the Constitution of India, praying to quash the proposition notice issued by the R-1 u/S.39 (1), 36 (1), and 72(2) of the KVAT Act 2003, for the Tax Period 2010-11 dated 7.5.2016 vide Annexure D.

These Writ Petitions are filed under Articles 226 and 227 of the Constitution of India, praying to quash the proposition notices issued by the R-1 u/S.39(1), R.W. Sec. 36 and 72(2) of the KVAT Act 2003, R.W. Rule 46 of the KVAT Rules, 2005 for the Tax Period 2011-12 dated 17.6.2016 i.e., Annex C .

These Writ Petitions are field under Articles 226 and 227 of the Constitution of India, praying to quash the impugned notices issued by the R-1 under Section 39(1) of the KVAT Act, for the tax period 2012-13, 2013-14 and 2014-15 dated 9.6.2016 i.e., Annexure-D, D1 and D2 respectively.

These Writ Petitions are field under Articles 226 and 227 of the Constitution of India, praying to quash the proposition notice issued by R-1 u/S.69/(1), 72(2) and 36 of the KVAT Act, 2003, for the tax period April 2011 to March 2012 dated 23.4.2016 i.e., Annex-D.

These Writ Petitions are field under Articles 226 and 227 of the Constitution of India, praying to quash the impugned order passed by the R-1 u/S.39 (1) of the KVAT Act, read with Section 36 and 72(2) of the KVAT Act, 2003 dated 16.7.2016, for the Assessment period April 2014 to March 2015 and the consequential demand notice issued by the R-1 in VAT form 180, dated 16.7.2016, for the Assessment period April 2014 to March 2015, i.e., Annex-D and E respectively.

These Writ Petitions are field under Articles 226 of the Constitution of India, praying to hold that, mobile charges sold along with mobile phones are classifiable under entry 53 of Schedule III to the KVAT Act.

These Writ Petitions are coming on for Preliminary Hearing in B Group, this day, the Court made the following)

1. The controversy in the present cases is squarely covered by the decision of this Court rendered in the recent past on 10/11/2016 in the case of M/s. LAVA INTERNATIONAL LIMITED Vs. STATE OF KARANATAKA AND OTHERS in Writ Petition Nos. 55790-801/2016 (T-RES), upholding the separate rate of tax on the Mobile Battery Chargers (MBC) sold along with the Mobile phones itself, under the provisions of the Karnataka Value Added Tax Act, 2003, (KVAT Act, 2003 for short), following the Supreme Court decision in the case of State of Punjab and others versus Nokia India Private Limited (2015) 77 VST 427 (SC).

2. This Court at paragraph 3 held as under:

3. The main question involved in the present case is also about the rate of tax applicable under the Karnataka Value Added Tax Act, 2003, on the sale of mobile battery chargers, which are sold in the same package as the mobile phones and separately also. As far as this issue is concerned, that is no longer res integra, as the same has been decided by the Honorable Supreme Court in the case of State of Punjab and others versus-Nokia India Private Limited (2015) 77 VST 427 (SC), which was quoted in the revised proposition notice itself by the respondent-Assessing Authority and the same is again quoted herein below for ready reference;

If the charger was a part of cell phone, then cell phone could not have been operated without using the battery charger. But in reality, it is not required at the time of operation. Further, the battery in the cell phone can be charged directly from the other means also like laptop without employing the battery charger, implying thereby, that it is nothing but an accessory to the mobile phone. Further, as per the information available on the website of Nokia, the Company has invariably put the mobile battery charger in the category of an accessory which means that in the common parlance also, the mobile battery charger is understood as an accessory. It has also been noticed that, a Nokia make battery charger is compatible to many models of Nokia mobile phones and also many models of Nokia make battery chargers which are compatible to a particular model of Nokia mobile phone, imparting various levels of effectiveness and convenience to the users ..and

The mobile/cell phone charger is an accessory to cell phone and is not a part of the cell phone. We further hold that the battery charger cannot be held to be composite part of the cell phone but is an independent product which can be sold separately, without selling the cell phone. (emphasis supplied)

3. The learned counsel for the petitioner further sought to still raise a contention that the entry under the Punjab Act was different for the KVAT Act, 2003, and here since entry in question is adopted from Central Excise Law, therefore, according to the Rules of interpretation under Excise Law, the Mobile Battery Chargers (MBC) sold along with the Mobile phones, in one retail package should be treated as taxable at the same rate as the Mobile phone itself under the Third Schedule to the KVAT Act, 2003, at the rate of 4% only.

4. This contention does not appear to be sound as the ratio of the Hon ble Supreme Court decisions cited above in the case of Nokia India Pvt. Ltd. is very clear that the Mobile Battery Chargers (MBC), cannot be treated as part of the Mobile Phones itself and they are mere accessories of the Mobile Phone and are to be taxed separately irrespective of their packing in the common package with Mobile phones.

5. The said binding precedent from the Apex Court is binding on all Courts/authorities in the Country. It is not based only on particular entry for tax rate under any particular State. Therefore, this Court is not inclined to entertain this contention of the assessee. The other issues of assessment have already been left open to be raised before the appellate authorities under the Act, as the petitioner has an alternative remedy against the impugned assessment orders and therefore they have been left free to agitate those points before such appellate authorities.

In view of this, the present writ petitions are dismissed. No Costs.


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