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2019 (11) TMI 535 - HC - VAT and Sales TaxLevy of VAT - Transfer of right to use of telephone instruments provided by the assessee to its subscribers/customers - sale of SIM cards for mobile network service - HELD THAT:- Once the assessee had raised specific challenge as to absence of any transfer of right to use, it was for the Tribunal to have applied its mind and offered reasoning to meet such challenge. Second, had such exercise been gone into, it would have become necessary for the Tribunal to call for and examine evidence including the agreements entered into by the assessee with its subscribers; the bills raised by the assessee on its subscribers and other materials as may have also been relevant to determine the true nature of the contract entered into between the assessee and its subscribers which gave rise to the disputed receipts at the hands of the assessee. If upon examination of such material the Tribunal had reached the conclusion that there was a transfer of right to use, then in that situation a further question would have arisen as to apportionment and determination of the amount received by the assessee as may be attributed towards consideration for transfer of right to use as only that amount may have been subjected to tax. Admittedly, the activity performed by the assessee also involved providing service. Therefore, unless such bifurcation or apportionment is found to be permissible in law and unless such bifurcation was actually done, the exact assessment of the tax liability of the assessee would remain illusive or undetermined. Liability of tax on SIM cards - HELD THAT:- The Supreme Court in the Cases of BHARAT SANCHAR NIGAM LTD. (BSNL) VERSUS UNION OF INDIA [2006 (3) TMI 1 - SUPREME COURT] and IDEA MOBILE COMMUNICATION LTD. VERSUS CCE. & C., COCHIN [2011 (8) TMI 3 - SUPREME COURT], has held that the matter was remitted to the Tribunal to pass a fresh order - Similar treatment is warranted in the present case as well owing to similarity of law situation. The matter is remitted to the Tribunal to pass a fresh order after affording limited opportunity to the parties to lead additional evidence - revision allowed by way of remand.
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