Vivek Rusia, J. - (1.) All above writ petitions, VAT Appeals and T.R.s' involves common questions of law; hence all are being decided by this common order. Interpretations of provisions of following enactments are involved in these cases:- (i) Madhya Pradesh Sthaniya Kshetra Me Mal Ke Pravesh Par Kar Adhiniyam, 1976 (hereinafter referred as "MP Entry Tax Act") (ii) Madhya Pradesh Commercial Tax Act, 1994 (hereinafter referred as "MPCT Act") and (iii) Madhya Pradesh Value Added Tax Act, 2002 (hereinafter referred as "VAT Act"). ---------------------------------------------------------------------------
(2.) The Assesses and appellants company are engaged in the activities of providing telecommunication services are herein after referred as "Assesse". --------------------------------------------------------------------------- W.P. No.6304/2011 has been filed by the Assesse being aggrieved by order dated 29.3.2010 passed by Assessing Authority and order dated 30.4.2011 passed by the Appellate Authority, by which, entry tax has been imposed under the M.P. Entry Tax Act for the for the period 2007-2008 over various goods like building material, plant & machinery, computer hardware, computer software, furniture fixers, office-equipment, vehicle, CWIP plant & machinery, SIM cards, recharge voucher, marketing material, etc. brought within the local area. W.P. No.6645/2012 has been filed by the Assesse being aggrieved by assessment order dated 16.4.2012 passed by the Assessment Authority, by which, entry tax has been imposed over various goods brought within the local area under the M.P. Entry Tax Act for the for the period 2009-2010. W.P. No.2760/2014 has been filed by the Assesse being aggrieved by assessment order dated 21.12.2012 passed by the Assessment Authority, by which, entry tax has been imposed over various goods brought within the local area under the M.P. Entry Tax Act for the for the period 2008-2009. W.P. No.8408/2013 has been filed by the Assesse being aggrieved by assessment order dated 19.3.2013 passed by the Assessment Authority, by which, entry tax has been imposed over various goods brought within the local area under the M.P. Entry Tax Act for the for the period 2010-2011. W.P. No.7534/2014 has been filed by the Assesse being aggrieved by assessment order dated 31.7.2014 passed by the Assessment Authority, by which, entry tax has been imposed over various goods brought within the local area under the M.P. Entry Tax Act for the for the period 2011-2012. W.P. No.5517/2015 has been filed by the Assesse being aggrieved by assessment order dated 28.2.2015 passed by the Assessment Authority, by which, entry tax has been imposed over various goods brought within the local area under the M.P. Entry Tax Act for the for the period 2012-2013. W.P. No.2328/2016 has been filed by the Assesse being aggrieved by assessment order dated 30.1.2016 passed by the Assessment Authority, by which, entry tax has been imposed over various goods brought within the local area under the M.P. Entry Tax Act for the for the period 2013-2014. W.P. No.308/2017 has been filed by the Assesse being aggrieved by assessment order dated 30.12.2015 passed by the Assessment Authority, by which, entry tax has been imposed over various goods brought within the local area under the M.P. Entry Tax Act for the for the period 2003-2004. W.P. No.6076/2018 has been filed by the Assesse being aggrieved by assessment order dated 23.1.2018 passed by the Assessment Authority, by which, entry tax has been imposed over various goods brought within the local area under the M.P. Entry Tax Act for the assessment year 2015-2016. VATA No.2/2013 has been filed by the appellant u/s. 53 of M.P. VAT Act, 2002 against the order dated 23.10.2012 passed in the appeal by M.P. Commercial Tax Appellate Board, Bhopal for the period 2006-2007 (entry tax). VATA No.3/2013 has been filed by the appellant u/s. 53 of M.P. VAT Act, 2002 against the order dated 23.10.2012 passed in the appeal by M.P. Commercial Tax Appellate Board, Bhopal for the period 2005-2006 (entry tax). VATA No.13/2014 has been filed by the appellant u/s. 53 of M.P. VAT Act, 2002 against the order dated 22.7.2014 passed in the appeal by M.P. Commercial Tax Appellate Board, Bhopal for the period 2003-2004 (entry tax). VATA No.14/2014 has been filed by the appellant u/s. 53 of M.P. VAT Act, 2002 against the order dated 22.7.2012 passed in the appeal by M.P. Commercial Tax Appellate Board, Bhopal for the period 2003-2004 (entry tax). VATA No.2/2015 has been filed by the appellant u/s. 53 of M.P. VAT Act, 2002 against the order dated 3.9.2015 passed in the appeal by M.P. Commercial Tax Appellate Board, Bhopal for the period 2004-2005 (entry tax). VATA No.3/2015 has been filed by the appellant u/s. 53 of M.P. VAT Act, 2002 against the order dated 6.4.2015 passed in the appeal by M.P. Commercial Tax Appellate Board, Bhopal for the period 2005-2006 (entry tax). T.R. No.108/2017, T.R. No.109/2017 and T.R. No.110/2017 are references sent to this Court by M.P. Commercial Tax Appellate Board, Bhopal vide order dated 26.12.2014 respectively for the period 1.4.1998 to 31.3.1999; 1.4.1999 to 31.3.2000; and 1.4.2000 to 31.3.2001 on following substantial questions of law : "1. Whether the appellant who is engaged in the activity of providing telecommunication services to its customers not involving any activity of buying, selling, supplying or distributing of goods can be said to be a 'dealer carrying on business' within the meaning of the provisions of the M.P.C.T. Act, 1994 and whether the applicant can be said to be covered by the provisions of charging section of the M.P. Entry Tax Act, 1976 viz. Section 3(1) and be subjected to Entry Tax? 2. Whether the appellant is liable to pay Entry Tax on goods imported from outside India on which Customs Duty has been paid as the said levy violates Article 286 of the Constitution of India and is also beyond the purview of Section 3 of the Entry Tax Act read with Section 2(aa) of the Act? 3. Whether entry of SIM cards and Recharge Coupons is liable for Entry Tax despite the fact that these SIM Cards and Recharges Coupons have been held not to constitute goods by the Supreme Court and are only covered by Finance Act, 1994 as being liable to Service Tax?" The answer to the aforesaid questions would also decide the writ petitions challenging various assessment orders as well as appellate order passed by the appellate authority in respective first appeals filed under provision of MP Entry Tax Act.
(3.) The Assesse is a Limited Company incorporated and registered under the provisions of Companies Act, 1956. The Assesse Company is engaged in the activity of providing telecommunication services to its customer under the license granted by the Department of Telecommunication, Government of India. Under the said license, the Assesse has been authorized for establishing, maintaining and operating the basic telecommunication services in the service area. For the aforesaid purpose, the Assesse had established its Branches/Establishment Offices and transmission units for electromagnetic waves and radio frequencies in the entire State of Madhya Pradesh. According to the Assesse, its activities are purely service oriented activity and there is no involvement element of sale and porches of goods and same is also outside the purview of provisions of MPCT Act and thereafter VAT Act. Although later on, the Assesse company obtained a registration under the provisions of MPCT Act and VAT Act, 2002 in view of the amendment under Section 8(3)(b) of the Central Sales Tax Act in order to availing the concessional rates and tax rebate by way of form 'C' etc. The aforesaid benefit of concession was given under the provisions of MPCT Act (now, VAT Act, 2002) to encourage the telecommunication sector as a whole so that the Assesse could spread their network throughout the country. That while obtaining the registration the Assesse Company has declared its activity as that of providing telecommunication service as its principal activity. The Assesse obtained the aforesaid registration as a matter of abundant caution which cannot be presumed that it has accepted the applicability of the Commercial Tax Act and the Central Sales Tax Act as there is no business of sale and purchase. The Apex Court in case of Bharat Sanchar Nigam Limited and Others Vs. Union of India & Others reported in, 2006 145 STC 91 has already held that mobile service is nothing but an electromagnetic waves and radio frequencies which do not constitute goods and no sale of goods as such is involved in the activity of providing telecommunication services. In order to provide the telecommunication services to its users, the telecommunication equipment, plant, machinery were brought within the local area of the State from outside place of Madhya Pradesh even from the outside of India. Such incident of taxation is under the MP Entry Tax Act is upon the dealer who is defined under the MACT / VAT Act and who in course of its business effects the entry of goods into the local area and since the Assesse is neither a dealer nor carrying on business as defined under the MACT/ VAT Act is not subjected to the tax under the MP Entry Tax Act. The respondents have levied the Entry Tax as well as penalty upon the Assesse for deferent periods.;