TMI Blog2010 (3) TMI 1011X X X X Extracts X X X X X X X X Extracts X X X X ..... vice tax from petitioner in the facts of the case and recovering the same without authority of law. Accordingly, communications dated May 6, 2008 (annexure A), July 8, 2008 and September 30, 2008 (annexure AA collectively), October 6, 2008 (annexure B), July 14, 2009 (annexure D) and July 18, 2009 (annexure E), are hereby quashed and set aside, and Ahmedabad Municipal Corporation is directed not to take any steps for the purposes of effecting coercive recovery of service tax. Ahmedabad Municipal Corporation is also directed to refund an amount of ₹ 6,17,165 having wrongly recovered the same towards service tax from the petitioner. Considering the nature of the controversy, the prayer for refunding amount of ₹ 6,17,165 with interest, is not accepted. - 8408 of 2009 - - - Dated:- 19-3-2010 - MEHTA D.A. AND DEVANI H.N. , JJ. JUDGMENT:- The judgment of the court was delivered by D. A. MEHTA J.- The parties have been heard at length at the admission stage. Considering the controversy involved, the court has found it necessary to hear the matter finally. Rule. The learned counsel appearing for the respective respondents are directed to waive service of rule. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pay service tax and taxable service has been assigned the meaning stipulated by section 65(105) of the Finance Act, 1994 as amended by the Finance Act, 2006 (hereinafter referred to as, the Service Tax Act ), wherein clause (zzzm) of section 65(105) of the Service Tax Act provides that taxable service means any service provided to any person, by any other person, in relation to sale of space or time for advertisement, etc. Explanation 1 thereunder explains what the phrase sale of space or time for advertisement includes. That a plain reading of the said provision would indicate that AMC cannot be termed to be a person who is providing service to any person so as to fall within the ambit of the said definition of taxable service, and if AMC cannot be termed to be a person who is providing space for display or for advertisement, AMC cannot seek to recover any service tax on the fees charged by AMC as licence fees because, as per provisions of the BPMC Act, such fees are charged as licence fees for the purposes of putting up/erecting a structure/hoarding for the purposes of advertisement, but the erection of such hoarding is on a land belonging to and owned by a private party and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le to pay service tax on the footing that AMC is rendering taxable service, whether AMC is entitled to recover the same from the petitioner, and if so, under which provision? The facts are not in dispute. In the present case, AMC has granted written permission to the petitioner to erect certain hoardings on private premises and for granting such written permission, AMC has charged and collected certain fees. For this purpose, sections 244 and 245 of the BPMC Act when read together provide for granting of written permission for erecting, fixing, exhibiting or retaining any sky-sign or advertisement upon any land, building, wall, hoarding or structure, subject to the applicant fulfilling the requisite conditions prescribed by the Rules. Under section 386 of the BPMC Act, AMC is entitled to charge a fee at the prescribed rate for granting the written permission. It is necessary to note that all the parties, including AMC, have used the term licence fees, however, a conjoint reading of the provisions of sections 244, 245 and 386 of the BPMC Act makes it clear that what is envisaged by the provisions is only a written permission and not a licence. Licensing is providing in secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion pictures or music albums, or on billboards, public places, buildings, conveyances, cell phones, automated teller machines, internet; (ii) selling of time slots on radio or television by a person, other than a broadcasting agency or organisation; and (iii) aerial advertising. Explanation 2.-For the purposes of this sub-clause, 'print media' means book and newspaper as defined in sub-section (1) of section 1 of the Press and Registration of Books Act, 1867 (25 of 1867). A plain reading of the aforesaid provisions indicates that taxable service means any service provided to any person, by any other person in relation to sale of space for advertisement. Explanation 1 thereunder specifies what the phrase sale of space for advertisement includes. Sub-clause (i) stipulates providing space for display, advertising, etc., on billboards, public places, buildings, etc. For the present, it is not necessary to refer to the remaining portion of the provisions. Thus, what is primarily required for a service to become a taxable service for the purposes of levy of service tax, is a service being provided to any person, by any other person in relation to sale of space for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ovisions of the Service Tax Act. Hence, in the absence of any authority in law by way of any statutory provision empowering AMC to collect service tax, the demand raised by AMC and the amount collected by AMC are without authority of law and cannot be upheld. It is also necessary to note that the contention raised on behalf of respondent No. 3, Service Tax Department, that ownership of property is not a relevant factor for determining liability to pay service tax may in abstract appear to be correct. However, what has to be considered is whether a taxable event has taken place, in the facts of the present case. The provisions of section 65(105)(zzzm) of the Service Tax Act require sale of space for advertisement, in other words, providing space for display or advertisement, and AMC is not in any manner providing space for display. Hence, to the said extent, aspect of ownership assumes significance. If the structure is erected by the petitioner on a premise privately owned, it cannot be stated that AMC has provided space for display. In the present case, the court is not called upon to decide as to whether owner of such private property answers the description of the per ..... X X X X Extracts X X X X X X X X Extracts X X X X
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