AJAY KUMAR MITTAL,J. - (1.) This order shall dispose of CWP Nos. 2618 to 2622 of 1997 as learned counsel for the parties are agreed that the issue involved in all the petitions is identical. However, the facts are being extracted from CWP No.2618 of 1997.
(2.) Prayer in CWP No. 2618 of 1997 is for quashing the impugned amendment of section 2(h)(iv) of the Punjab General Sales Tax Act, 1948 (in short, "the PGST Act") No.8 of 1987 being violative of principles of natural justice and the provisions of the Constitution of India. Further prayer has been made for quashing the assessment order dated 8.1.1997, Annexure P.3 passed by the assessing authority directing the petitioners to deposit Rs. 6,86,098/- as sales tax and additional sales tax and for restraining the respondents from recovering the amount from the petitioners.
(3.) A few facts relevant for the decision of the controversy involved as narrated in CWP No.2618 of 1997 may be noticed. The petitioners represent the department of Telecommunications, Government of India and discharge their functions framed thereunder. In discharging their statutory functions under the Indian Telegraph Act, 1885 (in short, "the 1885 Act") and the Indian Telegraph Rules, 1951 (in short, "the Rules"), as amended from time to time, the petitioners department provides telecommunication facilities all over India to various subscribers on the terms and conditions determined by the Central Government with reference to the mandate of 1885 Act and the Rules framed thereunder. One of the important functions that the petitioners discharge is of providing telecommunication facilities by establishing telephone exchanges at various places for the purpose of providing telephone connections to its various subscribers at places desired by them. Rental for telephone connections is therefore charged by the petitioners department from its various subscribers keeping in view different considerations including the strength of the Exchange system to which the telephone connections in question relate. The rental so charged on monthly or yearly basis varies from L 150/- to L 275/- for two months for various kinds of exchanges depending upon their total capacity. The rental keeps varying from time to time on the basis of variation in the cost of production of equipment, maintenance of equipment, wage structure of the employees employed for giving service to the subscribers. By the Constitution (Forty Sixth amendment) Act, 1982, Clause 29-A was inserted in Article 366 w.e.f. 2.2.1983 which reads thus:- "Article 366. Definition: In this Constitution, unless the context otherwise requires, the following expressions have, the meaning hereby respectively assigned to them, that is to say....... xxxxxxxxxxxxxxxxxxxxx (29A) "tax on the sale or purchase of goods" includes (a) a tax on the transfer, otherwise than in pursuance of a contact, of property in any goods for cash, deferred payment or other valuable consideration; (b) a tax on the transfer of property in goods (whether as goods or in some other form) invoked in the execution of a works contract; (c) a tax on the delivery of goods on hire purchase or any system of payment by instalments; (d) a tax on the transfer of the right to use any goods for any purpose (whether or not for a specified period) for cash, deferred payment or other valuable consideration; (e) a tax on the supply of goods by any unincorporated association or body of persons to a member thereof for cash, deferred payment or other valuable consideration; (f) a tax on the supply, by way of or as part of any service or in any other manner whatsoever, of goods, being food or any other article for human consumption or any drink (whether or not intoxicating), where such supply or service, is for cash, deferred payment or other valuable consideration, and such transfer, delivery or supply of any goods shall be deemed to be a sale of those goods by the person making the transfer, delivery or supply and a purchase of those goods by the person to whom such transfer, delivery or supply is made;" On the basis of the above amendment, the State of Punjab amended PGST Act by Punjab Act No.8 of 1988, the relevant part of which reads thus:- "2(h) "sale" means any transfer of property in goods other than goods specified in Schedule 'C' for cash, deferred payment or other valuable consideration and includes:- i) transfer, otherwise than in pursuance of a contract of property in any goods for cash, deferred payment or other valuable consideration; ii) transfer, of property in goods (whether as goods or in some other form) involved in the execution of a works contract; iii)delivery of goods on hire purchase or any system of payment by instalments; iv)transfer of the right to use any goods for any purpose (whether or not for a specified period) for cash, deferred payment or other valuable consideration; v) supply of goods by any unincorporated association or body of persons to a member thereof for cash, deferred payment or other valuable consideration; vi)supply by way of or as part of any service or in any other manner whatsoever, of goods, be being food or any other article for human consumption or any drink (whether or not intoxicating) where such supply or service is for cash, deferred payment or other valuable consideration; and such transfer, delivery or supply of any goods shall be deemed to be a sale of these goods by the person making the transfer, delivery or supply is made but does not include a mortgage, hypothecation, charge or pledge." On the strength of the amendment made to the PGST Act, respondent No.2 issued a notice for assessment for the years 1991-92 to 1995-96 for assessing the petitioners in view of Section 2(h)(iv) of the PGST Act. The petitioners submitted reply, Annexure P.2 to the notice. The petitioners were asked to deposit the assessed amount vide order dated 8.1.1997, Annexure P.3 and penalty proceedings were also initiated. Hence the instant writ petitions by the petitioners. ;