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2010 (3) TMI 1011 - HC - VAT and Sales TaxWhether AMC is rendering any service which can be termed to be "taxable service" within the meaning of the said term as defined in section 65(105)(zzzm) of the Service Tax Act? If AMC is liable 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? Held that:- 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. In light of what is stated hereinbefore, it is apparent that the act of AMC in granting written permission for a fee is in context of provisions of sections 244, 245 and 386 of the BPMC Act read together and the said Act cannot be termed to be a service provided by AMC to make the Act a taxable service for the purposes of Service Tax Act. AMC has, therefore, erred in law in demanding service 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.
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