Where VAT has been collected without authority of law and Service tax demand also has been raised for the same period then the VAT Assessing Authority is liable to transfer amount of VAT to Service Tax Department
Idea Cellular Ltd. Vs. Union of India [(2015) 57 taxmann.com 293 (Punjab & Haryana)]
Idea Cellular Limited (the Petitioner) is engaged in the business of cellular services and as a part of its business activated SIM cards. The Assessing Authority collected VAT on the premise that activation of SIM cards was a sale.
The Hon'ble Supreme Court in the case of Bharat Sanchar Nigam Ltd. Vs. Union of India [(2006) 3 STT 245] held that activation of SIM card was a service and not a sale. Accordingly, the Service Tax Department raised demand of Service tax for the period, VAT was already been paid. Thus, the Petitioner approached the Haryana VAT Department for refund of the amount of VAT.
The Hon'ble High Court of Punjab and Haryana held as follows:
· In terms of the Article 265 of the Constitution where the levy and collection of tax is without authority of law, the State does not have right to receive or retain taxes or monies realised from the Assessee without authority of law;
· The Service Tax Department has raised a demand for Service tax for the period for which the State of Haryana has levied and collected VAT. In order to avoid double taxation, Haryana Vat Department was directed to forward the amount of VAT collected on activation of SIM cards to the Service Tax Department.