M.M. Kumar, J. - (1.) This petition filed under Article 226 of the Constitution prays for quashing Sales Tax Assessment order Annexures P -1 to P -4 in respect of assessment years 1996 -97, 1997 -98, 1998 -99 and 1999 -2000 and all subsequent proceedings and orders Annexures P -5 to P -12 and P -14, where the activation charges have been included for the purposes of computing Sales Tax. The petitioner Company has further prayed that this Court may declare that Cellular Mobile Telephone Services provided by the petitioner Company is not goods within the meaning of Sec. 2(f) of the Haryana General Sales Tax Act, 1973 (for brevity, 'the Act 1) nor providing or running the service could be considered as sale within the meaning of Sec. 2(i) of the Act and accordingly the Cellular Mobile Telephone Services is not assessable to Sales Tax under the Act. A further alternative prayer has also been made for declaring Sec. 2(f) and 2(i) of the Act as ultra vires of the Constitution.
(2.) M/s Escotel Mobile Communications Limited -petitioner Company is engaged in providing Cellular Mobile Telephone Services to the general public in Haryana Telecom Circle after having been granted license by the Department of Telecommunications, Government of India. It is also engaged in selling Cellular Telephone instruments, SIM Cards and other accessories. Accordingly, it is registered as a dealer in Haryana under the provisions of the Act. For the purposes of Sales Tax, it is being assessed by the Excise and Taxation Officer -cum -Assessing Officer, Sonepat. The petitioner -Company in addition is also registered as service provider with the Central Excise Department for Service Tax. On the basis of the assessment that the service provided by the petitioner -Company is goods within the meaning of Sec. 2(f) of the Act or it is sale within the meaning of Sec. 2(i), the respondents have framed assessment orders, which have been made subject matter of challenge in the instant petition.
(3.) When the matter came up for consideration on 4.11.2004, a Division Bench of this Court had adjourned it to await the decision of Hon'ble The Supreme Court by passing the following order: Whereas "Ms. Nirmaljit Kaur, learned Additional Advocate General, Punjab, states that Constitutional vires of the Act have been upheld by a Division Bench of the Kerala High Court in Escotal Mobile Communications Ltd. v/s. Union of India and Ors. (2002) 126 Sales Tax Cases 479, and another judgment of Andhra Pradesh High Court in State Bank of India v/s. State of Andhra Pradesh ), counsel representing the petitioner states that the matter, reference whereof has been given in our order dated 9.12.2003, is still pending before the Hon'ble Supreme Court with stay and considering that fact, number of High Courts have adjourned the cases, involving the same challenge, sine die to await the decision of the Supreme Court. It is jointly stated by learned Counsel representing the parties that the matter was fixed before Hon'ble Supreme Court on 1.11.2004. Counsel for the petitioner, however, states that the matter was not taken up on 1.11.2004. In considered view of this Court, it will be more appropriate to await the decision of the Hon'ble Supreme Court, which, concededly, is seized of the same matter and wherein, concededly as well the stay was also been granted. List this matter on 9.11.2004.;