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2015 (8) TMI 1289 - HC - VAT and Sales TaxLevy of VAT or service tax - activity is in nature of sale or service - activity of providing passive infrastructure and related operations and maintenance services to various telecommunication operators in India - Held that:- When the petitioner has not transferred the possession of the passive infrastructure to the sharing telecom operators in the manner understood in law, the limited access provided to them can only be regarded as a permissive use or a limited licence to use the same. The possession of the passive infrastructure always remained with the petitioner. The sharing telecom operators did not therefore, have any right to use the passive infrastructure. There is no intention on the part of the Indus to transfer the right to use; it is only a licence or an authority granted to telecom operator as defined in Section 52 of the Easements Act, 1952. A licence cannot in law confer any right; it can only prevent an act from being unlawful which, but for the licence, would be unlawful. A licence can never convey by itself any interest in the property - The entire MSA has to be read as a whole without laying any undue emphasis upon a particular word or clause therein. What is permitted under the MSA is a licence to the telecom operators to have access to passive infrastructure and a permission to keep equipments of the sharing telecom operator in a prefabricated shelter with provision to have ingress and aggress only to the authorized representatives of the mobile operator. - Decision in the case of INDUS TOWERS LTD. [2013 (6) TMI 81 - KARNATAKA HIGH COURT] followed. The order of demand on the basis that the petitioner transferred the right to use passive infrastructure to the sharing telecom operators is quashed. - Decided in favor of assessee.
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