Profession Tax; Bharat Sanchar Nigam Ltd. Vs. Secretary to Govt. Department of Local Self Government [Kerala High Court,07-09-2016]

Panchayat Raj Act, 1994 (Kerala) – S. 204 – Panchayat Raj (Profession Tax) Rules, 1996 (Kerala)  R. 2 (c) & 4 – Profession Tax – Transact Business – BSNL shall be deemed to transact business attracting levy of tax.

Indira v. Kunhimangalam Grama Panchayat, 2012 (4) KLT 914 (Overruled)

IN THE HIGH COURT OF KERALA AT ERNAKULAM

Antony Dominic & Dama Seshadri Naidu, JJ.

WPC No.16670 of 2006

Dated this the 7th day of September, 2016

PETITIONER

THE BHARAT SANCHAR NIGAM LTD. KOTTAYAM, REPRESENTED BY ITS GENERAL MANAGER

BY ADV. SRI.K.RAMAKUMAR, SC, BSNL

RESPONDENTS

1. THE SECRETARY TO GOVT. DEPARTMENT OF LOCAL SELF GOVERNMENT, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM.

2. THE DIRECTOR OF PANCHAYATS, THIRUVANANTHAPURAM.

3. THE CHEMPU GRAMA PANCHAYAT, REPRESENTED BY ITS SECRETARY, CHEMPU P.O.,KOTTAYAM

R, BY GOVERNMENT PLEADER SRI.MOHAMED RAFIQ R3 BY ADV. SRI.V.G.ARUN R3 BY ADV. SRI.T.R.HARIKUMAR R3 BY ADV. SRI.S.RADHAKRISHNAN R3 BY SRI.P.R HARIKUMAR SC

J U D G M E N T

Antony Dominic, J

1. Chempu Grama Panchayat issued notices to Bharat Sanchar Nigam Ltd. (BSNL for short), a Government company as defined under the Companies Act, which is engaged in providing telecom services, demanding profession tax. Thereupon BSNL has filed this writ petition for a declaration that it is not liable to pay profession tax to any one of the Panchayats in the State of Kerala merely because its telephone exchanges are functioning within the Panchayat areas. When the writ petition came up for consideration, the counsel for the petitioner placed reliance on the judgment of this Court in Indira v Kunhimangalam Grama Panchayat, 2012 (4) KLT 914 and contended that since BSNL is not transacting any business as defined in Rule 2(c) of the Kerala Panchayat Raj (Profession Tax) Rules, 1996 (hereinafter referred to as the ‘Rules’ for short), it is not liable to be taxed.

2. The learned Single Judge doubted its correctness of the judgment in Indira (supra) and order dated 28.6.2016 was passed referring the writ petition to be heard by a Division Bench. It is, accordingly that this case is listed before us.

3. We heard the learned senior counsel for the petitioner, learned Senior Government Pleader appearing for respondents 1 and 2 and learned standing counsel appearing for the third respondent Panchayat.

4. Before we deal with the case of BSNL, we shall proceed to answer the reference made by the learned single judge with regard to the correctness of the judgment in Indira’s case. Indira (supra) was a case in which the Kunhimangalam Grama Panchayat had filed a complaint before the JFCM, Payyannur alleging that the Accounts Officer, BSNL had failed to pay profession tax for the assessment year 2006-2007 which was assessed taking into account the total business turn over of the two telephone exchanges situated within the limits of that Grama Panchayat. BSNL contended that it is a company owned by the Government of India, providing basic telephone services, mobile service connection, internet connection and other allied services through its telephone exchanges and towers constructed by it. It was also contended that the BSNL was not doing any business but only rendered service to its subscribers and that it was not engaged in buying, making, manufacturing, exporting or importing in the telephone exchanges within the jurisdiction of the Panchayat. According to BSNL for the services rendered, it was only collecting service charges and that such activities carried on by it were not covered by the provisions of the rules attracting levy of profession tax.

5. Dealing with these contentions, and referring to the provisions of the Rules and the judgment of the Apex Court in Bharat Sanchar Nigam Ltd. and another v. Union of India and others, (2006) 3 SCC 1 a learned Single Judge of this Court held thus:

“If it is a case where the SIM Cards and other telephone apparatus or goods are sold from the Telephone Exchange itself and if BSNL solicits the citizens to have BSNL connections or is otherwise dealing with goods, then certainly it can be said that the BSNL ‘transacts business‘ within the meaning of Rule 2(c), referred to earlier. Therefore, the prime question would be whether in a particular Telephone Exchange SIM Cards and/or other goods are sold, in which case it can be held that the BSNL transacts business. If so, they would be liable to pay Profession Tax as enjoined under S.204 of the Kerala Panchayat Raj Act, 1994. That would actually be a question of fact which has to be decided depending on the materials produced before the Magistrate at the trial. Therefore, whether, in the Telephone Exchanges in Kunhimangalam Grama Panchayat, the SIM Cards or other goods are being sold or dealt with are to be gone into at the time of trial. As such, I find no reason to quash the proceedings invoking S.482 of Cr.P.C.

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